updated 9/14/2005 11:15:07 AM ET 2005-09-14T15:15:07

Guests: Pat McGinnis, Cyril Wecht, Justine Andronici, Rachel Maddow, Gary

Lagrange

TUCKER CARLSON, HOST:  Many situations tonight.  Another crowded news day, with stunning homicide charges in ravaged St. Bernard Parish, Louisiana, President Bus‘s public mea culpa, and day two of the Roberts nomination hearings. 

MSNBC‘s David Shuster standing by for us in New Orleans with the latest.  And Michelle Kosinski is tracking Hurricane Ophelia for us on the Carolina coast. 

We begin tonight with the story of St. Rita‘s Nursing Home in St.

Bernard‘s Parish, which was ravaged by flooding and Hurricane Katrina. 

Thirty-four people, most of them elderly, died when floodwaters reached St.

Rita‘s roof. 

Louisiana Attorney General Charles Foti announced late this afternoon Mable and Salvador Mangano, the owners of the nursing home, are being charged with 34 counts of negligent homicide in that case. 

(BEGIN VIDEO CLIP)

CHARLES FOTI, LOUISIANA ATTORNEY GENERAL:  Presume that they drowned, drowned, is that good enough for you?  They drowned.  They did not die of natural causes.  They drowned.  Thirty-two people -- 34 people drowned in a nursing home when it should have been evacuated. 

(END VIDEO CLIP)

DAVID SHUSTER, NBC NEWS CORRESPONDENT:  That, of course, was Louisiana attorney general, and here in Louisiana, it has just been a devastating night of news for folks who had heard about this story initially, about seven or eight days ago. 

Initially, rescue teams, we believe, from California were the ones who discovered that 34 people were in that nursing home in St. Bernard‘s Parish, which was the parish that was hit the hardest in this area.  Many of the homes there, of course, destroyed, many businesses. 

And this was apparently a case now, according to Louisiana‘s attorney general, where the owners of this nursing home were informed, “Look, the storm surge is coming.  It‘s going to put this nursing home under water.”  They ignored that warning.

Then officials in St. Bernard‘s Parish actually offered the owners of this nursing home a bus to evacuate the 34 residents, the elderly who could not get out.  That offer was turned down. 

And today, as you just heard, the Louisiana attorney general said that all the people who were found there drowned.  There is one report tonight, one report that before the owners left the nursing home, they actually took some of these elderly, they put them in a room with blankets and gave them I.D. cards, then evacuated the rest of the staff and left them there. 

But that, of course, is just a devastated area, that has already had some pretty bad news.  St. Bernard Parish, again, is an area where they‘re talking about nobody being able to return to their homes for at least six months.  And some areas of that particular parish, officials say, many people will not be able to return at all, simply because of the oil refineries that are nearby, that split in two, split open, spilling oil all along that particular part of the coast.  That‘s the bad news from St.  Bernard Parish. 

There‘s also some bad news in Plaquemines Parish.  Plaquemines Parish is the parish just a little bit south of St. Bernard‘s, and according to meteorological reports, that particular parish now is still under water.  The Gulf has essentially changed its boundary.  And there are some areas that many people believe in that parish are gone.  They are now part of the Gulf. 

Here in New Orleans, the clean-up continues.  There‘s still some problem with utility workers, though.  Only 300 of the city‘s 1,200 water workers have returned to the job.  So even as they‘re trying to repair some of the sewage lines and the water pipes, they do not have the manpower that they were expecting. 

In addition, the mayor of New Orleans said today that the city is broke, and he has not yet figured out how they‘re going to be able to pay for the fire and police that are on the job, as well as the utility workers that are still on the job.  So this as New Orleans is trying to recover, many financial problems as well as all the other problems that this particular part of the country is facing—Tucker. 

CARLSON:  David, I‘m back. 

You are in New Orleans working off a generator.  I‘m here in civilization.  I‘m the one with the mike problems. 

I don‘t know if you have seen this.  There is really an amazing story that has just crossed my computer, anyway, by Jake Tapper over at ABC about William Jefferson.  He‘s the congressman, of course, from New Orleans.

And the story says, and apparently it‘s been confirmed by the congressman himself, that on Friday, September 2, Congressman Jefferson went to New Orleans to see his constituents, apparently. 

And during the time he was there, took a five-ton military truck and a half a dozen military policemen on a trip to his own house, where he went inside, and unloaded for about an hour belongings that he wanted to get out, brought them back to the truck.  There was a helicopter involved in this rescue Congressman Jefferson‘s stuff mission, and then left.  And apparently didn‘t evacuate anyone else. 

It‘s an amazing story.  Certain to have ramifications, probably tomorrow morning, as soon as it is heard by more people.  Have you seen members of Louisiana‘s congressional delegation in New Orleans?  Are they out and about?

SHUSTER:  No, Tucker, I did not see Congressman Jefferson in particular.  I‘m trying to remember if he was, in fact, with President Bush when the president came through here the other day.

But the reason—and you‘ve got your finger on it—the reason why this story is going to have such huge ramifications is keep in mind the date, Friday, September 2.  This was still at a time when they were still using helicopters to rescue people. 

This was a time when urban search and rescue teams from California and other places were just starting to arrive here to establish communications.  This may have been one of the first days when, in fact, the New Orleans Fire Department actually had communications.  They were in the thick of things of trying to rescue people.

And so if this story is, in fact, true, that the congressman was using a helicopter to rescue his own stuff, I mean, that is going to have ramifications not only for him.  But it‘s the sort of thing that‘s just going to infuriate everybody else in New Orleans who was busy on that particular day working around the clock trying to rescue people, using resources that may have just started arriving. 

If there were National Guard here, they certainly were not downtown. 

This is a week when they certainly could have used National Guard downtown.  And that‘s going to be another issue.  What exactly was going on, by using National Guard to help a congressman get his stuff?

CARLSON:  It‘s pretty outrageous.  And apparently the helicopter was not used to bring his stuff out of his house.  The helicopter hovered above for 45 minutes, wanting to see if he needed help. 

We were in New Orleans that very same day.  There were fires burning totally unattended.  There were people waiting to be taken out of the city.  There were people who were literally dying of dehydration. 

And apparently the story is true.  He‘s quoted in it, so I can‘t wait to see what the fallout is.  We‘ll be talking about it tomorrow, no doubt. 

David Shuster, we‘ll be talking to you tomorrow, too.  Thanks a lot for coming on.

SHUSTER:  Thanks a lot, Tucker.  Take care.

CARLSON:  Well, back to the—really, the story of the day, St.  Rita‘s Nursing Home in St. Bernard‘s Parish, murder charges filed against the owners of that.  Joining us now to talk about this, Pat McGinnis.  She‘s executive director of the California Advocates for Nursing Home Reform.  She joins us live.

Pat McGinnis, thanks a lot for coming on. 

PAT MCGINNIS, CALIFORNIA ADVOCATES FOR NURSING HOME REFORM:  Thank you. 

CARLSON:  Were you shocked by this story?

MCGINNIS:  We were all shocked.  There was a lot of chatter on the Internet this morning, and I think people were shocked and they were also outraged that these very frail, bed-ridden people had been abandoned. 

CARLSON:  If the state knew that there were—this is the first question that occurred to me when I read it.  If the state was aware or the authorities in St. Bernard‘s Parish were aware there were all these elderly residents of the nursing home remaining at St. Rita‘s Nursing Home, why didn‘t the state evacuate them?

MCGINNIS:  That‘s a good question.  I am not aware that the state was aware.  I did read the—all of the stories on the Internet and in the papers about the fact that they were offered, the providers, the owners, were offered evacuation facilities, and that they declined. 

And, you know, that‘s just fine, if they want to choose to stay there and to bypass that opportunity, but it‘s not fine to make that choice for people who are not able to make that choice. 

I think that these are our mothers and fathers, our brothers and sisters, our sons and our daughters, and these people put their trust in those providers, and I think that trust was breached, seriously. 

CARLSON:  And if it is, in fact, true the employees and the staff of the nursing home took off and left the elderly people in their care to drown, if that‘s, in fact, true, it‘s completely—it‘s unspeakably outrageous.  Aren‘t nursing homes regulated to an extent where someone would know that these people were left behind?

MCGINNIS:  I don‘t know that they would know, but one of the things I do know is that nursing homes are regulated.  Every state in this country has regulations relating to emergency evacuations. 

I talked to a colleague of mine right before I came on, who worked in Louisiana, in New Orleans, actually, with Citizens Advocates, which is a wonderful advocacy group in New Orleans, been working on these kinds of issues for years. 

And apparently, 12 years ago, after a very serious hurricane down there, they worked with the state to devise a very—more stringent emergency preparedness standards for nursing facilities.  So I believe that Louisiana has that, as well. 

CARLSON:  You would think when a storm like this is coming, the people who are literally incapable of leaving themselves would be first on the list for evacuation.  Apparently they‘re not. 

Is there some—is there some way for the state to contact the relatives of residents of nursing homes?  Presumably a lot of these people had relatives who were younger and possibly capable of evacuating them.  Would there be anyone to tell them that their loved ones were stranded?

MCGINNIS:  I doubt that very much.  In most facilities, I know even out here, there‘s no way for the state to necessarily contact residents. 

What the—when one goes into a nursing home, and a relative is placed in a nursing home, the nursing home themselves have the ability to contact.  They have to have a contact person.  They have to have a representative, a name of their legal representative or their family member to contact, but that information is not necessarily transferred to the department of health services or to the state itself. 

CARLSON:  You know a lot about nursing homes obviously.  Reassure our viewers that most nursing homes are not the kind of places where something like this could happen.  We hope. 

MCGINNIS:  I was going to say that.  I don‘t think that this is representative of nursing home providers at all, and, in fact, many providers have acted heroically during this horrible tragedy. 

I‘ve seen all kind of Internet sites, in Louisiana, the Nursing Home Association has a site where people can put in the name of their relative to find out where they might have been relocated to. 

Mississippi Nursing Home Association has a wonderful site where they will list every nursing home and where that person had been evacuated to, the new facility.

So as a whole—and I‘ve seen all over this country, nursing home providers opening up their facilities to other residents who have been displaced. 

But I do think that this points out once again that every single day in this country nursing home residents are abused and neglected, and I think that this is probably just one of the grossest examples of that.  And it‘s just a horrible tragedy. 

CARLSON:  Absolutely horrifying. 

MCGINNIS:  Yes, it is. 

CARLSON:  Pat McGinnis, joining us live from California, thanks a lot. 

MCGINNIS:  Thank you. 

CARLSON:  Well, the news from the Carolina coast tonight is not good.  Ophelia is back to hurricane strength, and a hurricane warning is in effect from Georgetown, South Carolina, to North Carolina‘s Cape Lookout. 

Let‘s bring in Michelle Kosinski, who‘s in Atlantic Beach, North Carolina, right now. 

Michelle, what‘s happening?

MICHELLE KOSINSKI, FOX NEWS CORRESPONDENT:  Hey, Tucker.  We‘re really feeling it now. 

Earlier today, it was like nothing was happening.  And tonight, late in the evening, we started getting the winds.  Now they‘re gusting at about 30 miles an hour.  And it‘s going to intensify through the night. 

Part of the problem here is Ophelia has been hanging around the coastline and both South and North Carolina, variation, since Friday.  So we‘re getting these winds now, and they‘re going to continue this way for a long time. 

In fact, officials tonight are talking about us experiencing tropical storm force winds, possibly even hurricane force winds for about 24 hours straight as this thing moves very slowly over land.

So what that causes are a lot of problems, especially with flooding.  That‘s going to be the major issue here.  As that wind keeps blowing, it pushes all the water into the sounds, into the rivers in this area.  And that‘s similar to what we saw in Hurricane Floyd, even though that storm was much, much more powerful than this one. 

You get that continuous wind, and some of the worst flooding you see is inland. 

So we‘re seeing evacuations.  We‘re seeing some other measures taken, extreme measures, by officials even ahead of time, because you know,  they don‘t want to have the same kind of situation that we saw in Hurricane Katrina, even though this minor Category 1 storm just doesn‘t compare in strength. 

You know, we‘re seeing the local and federal officials getting involved earlier on in the game.  Mandatory and voluntary evacuations in both of these states. 

Also, we‘re seeing National Guard already here.  About 280 of them stationed in four different areas in eastern North Carolina.  They‘re going to be ready when and if that flooding happens, and for whatever needs there are after the storm passes through. 

Also, the Pentagon has sent in these people called defense coordination experts.  They‘re also going to be helping with local officials, about a dozen in each team. 

And we‘re seeing others, too.  We‘re seeing federal officials get involved.  For the first time ever, a Coast Guard admirable—admiral, sorry, is going to be in charge of operations after the storm. 

And, you know, the wind is picking up so much, it‘s even getting difficult to talk out here.  Really gusts in waves, and no rain yet, but we‘re expecting this to be a very wet storm.  So in addition to the flooding caused by the wind, we‘re going to see a lot of rain just hanging over this area, Tucker. 

CARLSON:  Michelle Kosinski in North Carolina.  We will be back to you, without question.  Thanks a lot for coming on. 

Katrina‘s death toll jumped sharply today as rescuers turned to recovering the dead, but experts say identifying those victims is going to be far more difficult than it was even after 9/11.  A top forensic pathologist will talk to us about the many challenges. 

Also, we‘ll have a report from Washington correspondent Norah O‘Donnell on today‘s spirited confirmation hearing for Supreme Court nominee John Roberts.  Democrats came out firing, of course from the Senate.  Some of the exchanges are actually pretty entertaining. 

(BEGIN VIDEO CLIP)

JUDGE JOHN ROBERTS, SUPREME COURT CHIEF JUSTICE NOMINEE:  It applies to the office. 

SEN. JOE BIDEN (D), DELAWARE:  Only to the office. 

ROBERTS:  It applies.  The question...

SEN. ARLEN SPECTER ®, PENNSYLVANIA:  Let him finish his answer, Senator Biden. 

BIDEN: The answers are misleading, with all due respect.

SPECTER:  Wait a minute.  Wait a minute.  They may be misleading, but they‘re his answers. 

BIDEN:  OK.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

CARLSON:  Still ahead, the grim task of identifying bodies all along the Gulf Coast. 

Plus, a member of the feminist majority tells me what she thinks about John Roberts‘ performance today.  Stay tuned.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GOV. KATHLEEN BLANCO (D), LOUISIANA:  I cannot stand by while this vital operation is not being handled appropriately.  In death as in life, our people deserve more respect than they have received.

(END VIDEO CLIP) 

CARLSON:  Well, the death toll from Hurricane Katrina jumped today.  Louisiana now reports 423 deaths; Mississippi, 218.  A total of at least 659 people are dead across five states.  That number, of course, likely to rise. 

Now comes the difficult job of identifying the dead.  Dr. Cyril Wecht, one of the country‘s leading forensic pathologists, he joins us now live.  Dr. Wecht, thanks a lot for coming on. 

CYRIL WECHT, FORENSIC PATHOLOGIST:  Good evening, Tucker. 

CARLSON:  And why is it more difficult to identify the dead in the aftermath of this disaster than it is typically when people die?

WECHT:  These bodies, for the most part, have been decomposing now for about, what, two weeks.  Temperatures above 90 degrees, very high humidity.  Many of the bodies floating in water, which, of course, then, adds to the decomposition, particularly that kind of warm, brackish water. 

The bodies become bloated, gaseous distension, as a result of the bacterial infestation.  The discoloration is very, very intense, mottled.  Don‘t want to get more graphic.  I will tell you...

CARLSON:  It‘s pretty graphic. 

WECHT:  It‘s impossible to differentiate between Caucasian, African-American and Asian, with bodies like this, as strange as that may seem.  Tattoos and other skin markings, surgical scars will be gone, because of skin slippage, and post-mortem decomposition of the underlying subcutaneous tissues.  Everybody will essentially look pretty much like another.  So...

CARLSON:  In just that short a time?  It‘s only been, what, two weeks?

WECHT:  Yes.  That‘s a long time in that kind of environment. 

Then you have got the additional problems of geography.  You don‘t have geographic identification, so to speak, except in some instances like the 40, 45 bodies found in a nursing home.  Even there, while they‘ll know who the 45 are, to determine who was Mr. X and who was Mr. Y, will be difficult, but what if you find a body floating on Royal Street, where did it come from?

Then you don‘t have dental and medical records to chart, so those who would help in determining these kinds of things in an airplane crash or even in 9/11, and in some huge conflagration.  Those opportunities are not available to you here, because of the absence of records in many instances. 

CARLSON:  What about DNA testing, then?

WECHT:  Yes.  What they‘re doing is they are taking a piece of the tibia, the shin bone, and they‘ll have that for mitochondrial DNA.  That‘s the matrilineal.  It‘s not anywhere near as precise as regular DNA. 

DNA, for the most part, too, by the way, is obfuscated and negated by the decomposition of the soft tissues.  But the portion of bone will enable them, if they have, then, something to compare to later on, mitochondrial DNA, and probably for most purposes will be good enough. 

So they will have to see about getting something from someone, from the mother‘s side of that family, and check to see if this is Mr. X or Mrs.

Y. 

It‘s a situation that we have never encountered in this country because every time there has been some huge tragedy, of some kind, cyclone, tornado, hurricane, a flood, fire, explosion, you‘ve pretty much known or come to know who was there, and you also have those geographic parameters. 

SHUSTER:  Yes. 

WECHT:  But you don‘t have this. 

CARLSON:  But also, if I could point out, that typically authorities who run cities have the decency to pick dead bodies up off sidewalks when they have the chance to, and the New Orleans authorities weren‘t decent enough to do that we witnessed firsthand.  Tell me: is it possible that some of these bodies will never be identified?  No one will know who they were.

WECHT:  Yes.  That is absolutely going to be the case, because many of these people will not have close relatives who will come forward.  Many of these people will not have a relative to trace back for DNA comparison purposes. 

Some of the bodies will have become so decomposed and traumatized, even, I do expect that there will be a fair number of bodies that will never be identified. 

I agree with the statement that you just made a moment ago, Tucker, and I‘m not looking to place blame.  It‘s not for me to do that.  But from what I‘ve read and heard, it does not seem that the retrieval of these bodies and the storage in refrigerated units is occurring as quickly as one would think it would... 

CARLSON:  No. 

WECHT:  ... in our country. 

CARLSON:  We saw people, police officers, members of the National Guard sitting around drinking bottled water and Diet Coke with dead bodies directly in front of them.  They made no effort to pick them up and bring them to a refrigerated facility. 

WECHT:  Really?

CARLSON:  It was just disgusting and it bothers me to this moment. 

Dr. Wecht, thanks a lot for coming on. 

WECHT:  Thanks.  Nice being with you.

CARLSON:  Still ahead, it was day two of the John Roberts confirmation hearings.  We have all the highlights of the Democrats‘ assault and a complete analysis of the judge‘s response.  It‘s gotten pretty interesting.  You‘ll want to watch it.  Be right back.

(COMMERCIAL BREAK)

CARLSON:  Today was day two of the hearings that will determine whether John Roberts is the next chief justice of the U.S. Supreme Court.  Flashes of drama and levity punctuated hours and hours and hours of senators talking and talking and talking.  Happily, we‘ve collected the highlights.  Here they are.

(BEGIN VIDEOTAPE)

SPECTER:  Would you think that Roe might be a super duper precedent in light of—in light of 38 occasions to overrule it?

ROBERTS:  I do think that it is a jolt to the legal system when you overrule a precedent.  Precedent plays an important role in promoting stability.  It is not enough that you may think that the prior decision was wrongly decided. 

Like most people, I resist—resist the labels.  I have told people when pressed that I prefer to be known as a modest judge.  And to me, that means some of the things that you talked about with those other labels. 

It means an appreciation that the role of the judge is limited, that a judge is to decide the cases before them.  They‘re not to legislate.  They‘re not to execute the laws. 

Judges have to decide hard questions when they come up in the context of a particular case.  That‘s their obligation.  But they have to decide those questions according to the rule of law, not their own social preferences, not their policy views, not their personal preferences. 

You have not accurately represented my position. 

SEN. EDWARD KENNEDY (D), MASSACHUSETTS:  These are your words. 

SPECTER:  Let him finish his answer. 

ROBERTS:  Senator, with respect, you have selected... 

SPECTER:  Wait a minute.  Senator Kennedy just propounded a very, very long question.  Now, let him answer the question. 

ROBERTS:  Senator, you did not accurately represent my position.  It applies to the office...

BIDEN:  Only to the office.  Right, it applies narrowly. 

SPECTER:  Let him finish his answer, Senator Biden. 

BIDEN:  The answers are misleading, with all due respect. 

SPECTER:  Well—Wait a minute.  Wait a minute.  They may be misleading, but they‘re his answers. 

BIDEN:  OK. 

ROBERTS:  If I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case, and on the basis of the rule of law, including the precedents of the court.  And not on the basis of any commitments during the confirmation process. 

SPECTER:  We have the power to declare war.  Do we have the power to terminate war?

ROBERTS:  Senator, that‘s a question that I don‘t think can be answered in the abstract.  You need to know the particular circumstances and exactly what the facts are and what the legislation would be like, because the argument on the other side, and as a judge, I would obviously be in a position of considering both arguments, the argument for the legislature and for the executive. 

The argument on the executive side will rely on authority as commander-in-chief and whatever authorities derive from that.  So it‘s not something that can be answered in the abstract. 

(END VIDEOTAPE)

CARLSON:  Fun, fun.  MSNBC‘s Norah O‘Donnell was on Capitol Hill all day long, covering the hearing.  She joins us now—Norah. 

NORAH O‘DONNELL, NBC NEWS CORRESPONDENT:  Good evening, Tucker.  Tonight, round one of the Senate hearings has ended, without much of a knockout punch. 

Judge Roberts largely escaped without a scratch today after a marathon session with questions from 18 senators. 

The first question of the day was on abortion, but it was not from a Democrat.  In fact, it was from the Republican chairman of the Senate Judiciary Committee, Arlen Specter. 

He held up an elaborate and, quite frankly, hard to read poster, with 38 abortion related cases that have been decided since Roe vs. Wade.  Roberts said that the decision on abortion rights in Roe vs. Wade was not only settled law but also a precedent worthy of respect. 

Now, today‘s hearings have given many Americans perhaps their first and one of their last chances to see Roberts describe his views on abortion, civil rights, women‘s rights, and the rights to privacy, among a host of other issues. 

Roberts has said he has no agenda, no platform, and that he will call balls and strikes as he sees them.  But you know, today, Democratic Senator Herb Cole, who happens to own the Milwaukee Bucks, noted that everyone who follows sports knows that with an umpire or a referee is not just a passive observer and does have the power to throw a close game. 

Now, round two starts tomorrow with another round of tough questions from the Democrats and Republicans.  Today‘s hearing ended with Republican Senator Lindsey Graham asking Judge Roberts how he wants to be remembered in history, and Roberts responded, “Well, first, I hope to be confirmed”—

Tucker. 

CARLSON:  Thanks, Norah. 

First, breaking news tonight.  Reuters is reporting a car bomb has gone off in a Shiite section of Baghdad, killing at least 10, wounding another 10.  Apparently, the dead were laborers waiting in line for jobs. 

Coming up, as we speak, pumps steadily drain New Orleans of toxic floodwaters.  How much longer before the city is completely dry?  How much longer after that before real revival begins?  Answers when we come back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JOHN ROBERTS, SUPREME COURT NOMINEE:  Again, I think I should stay away from discussions of particular issues that are likely to come before the court again.  And, in the area of abortion, there are cases on the court‘s docket, of course.  It is an issue that does come before the court, so while I‘m happy to talk about stare decisis and the importance of precedent...

(END VIDEO CLIP)

CARLSON:  Like many nominees before him, Judge John Roberts has avoided explicit statement of his stance on the abortion issue, which for many people defines a Supreme Court justice‘s career.

Joining me now to discuss Roe v. Wade and the ongoing confirmation hearings is Justine Andronici.  She‘s a legal adviser for the Feminist Majority, Justine, thanks a lot for coming on.

JUSTINE ANDRONICI, LEGAL ADVISER, FEMINIST MAJORITY:  Thanks for having me.

CARLSON:  I was reading a press release from the Feminist Majority today, put out by Ellie Smeal.

ANDRONICI:  Yes.

CARLSON:  And it makes Judge Roberts sound like frankly a fascist.  It says that he, if confirmed, would roll back the gains made by women and people of color over the last 40 years, in other words, he‘s a racist, eliminate the right to privacy, unravel the legal gains and guarantees of decades of civil rights law.  He‘s a right winger, a reactionary, again who will eliminate years of progress by women and minorities. 

This is not at all the man we saw on television today.  This is actually kind of a parody of an over-the-top disconnected from reality press release.  Can you defend this?

ANDRONICI:  Oh, absolutely, Tucker.  I mean first obviously we didn‘t use that term fascist but all of the statements that you read there about the...

CARLSON:  Well, you call him a racist basically.

ANDRONICI:  Well, we say that we have very serious concerns about the direction a court will take under his leadership and I think that today‘s hearings made very clear why we have some of those concerns and he refused to answer questions, direct questions frankly about a lot of important issues, especially for women. 

And, you know, with regard to the idea which I heard earlier from your reporter that he said that Roe v. Wade was settled law that was not stated today.  He never said that.  He, in fact, avoided these questions over and over.

CARLSON:  Actually, I have the quote here.  He said it was “settled precedent” and then later he said it was “worthy of respect,” but more to the point he endorsed Griswold v. Connecticut, the 1965 decision that created the right to privacy, which made the way for the 1973 Roe v. Wade decision, which legalized abortion.  That is at the core of everything, as you know, that you work for and he endorsed it.

ANDRONICI:  Of course, Griswold is an extremely important case but let me back up briefly and say that he said that is entitled—Roe v. Wade is entitled to the respect as any Supreme Court precedent is and that the principles of stare decisis need to be applied.

Basically, what he did is say, look, courts have ways of addressing established precedent and in order to evaluate whether a case should be overturned the court looks at various factors.

What he refused to do, and this is where I think it‘s extremely important that people don‘t get confused, is to articulate how he believes those factors or that analysis of stare decisis would be applied to some of the most fundamentally important rights for women, particularly the right to choose abortion.

CARLSON:  Wait, wait, wait, wait, wait, wait, hold on here.  Every—you‘re right he has not come out and said specifically what he believes about abortion, just like the past, you know, with the exception I think of Ruth Bader Ginsburg nominees going back to the early 1980s have refused to say what they think about abortion. 

But the fact is every indicator we have, impartial people have, not that I‘m one of them but, you know, I can look impartially at this, indicate this guy is not a right winger.  He‘s a moderate.  He did pro bono work on behalf of gay rights.  He concedes there is a right to privacy.  He doesn‘t attack Roe v. Wade and hasn‘t in his adult life anyway in the last ten years since he‘s been on the bench, the last couple of years.  What do you want?

ANDRONICI:  Let me respond briefly.  Tucker, listen, he concedes there‘s a right to privacy but he gives absolutely no indication as to what the scope of that right is and I think that‘s an extremely and fundamentally important issue.

Look, this is 2005.  We are at a place in history where we have an opportunity to see women‘s rights advance into the future as they are in many other parts of the world or to turn back to a time when women had fewer rights and fewer abilities to bring cases under the law to seek equality.  And, frankly, Roberts‘ answers today gave no indication that he believes that the right to privacy encompasses a right of a woman to choose abortion. 

And, on Griswold, I think it‘s extremely important for people to understand that when asked about Griswold he responded by saying that marital privacy, marital privacy has extended the right to contraception to married women but he never mentioned—I would like to know...

CARLSON:  Wait, wait, wait a second.

ANDRONICI: ...and I do hope that the Senators will ask him those questions about what about (INAUDIBLE).

CARLSON:  I‘ve read every word.  I‘ve read every word he said.

ANDRONICI:  As did I, Tucker.

CARLSON:  He said in more general terms that he agreed with that 40-year-old decision but I really believe in my heart that is this guy were to strike a $10,000 check to Planned Parenthood you would still oppose him just because that‘s what you do.

ANDRONICI:  No, no.  Frankly, let‘s remember, Tucker, we have—we have a basic framework to examine this man‘s perspective on important issues related to women‘s rights and that framework is a lot of his early writings where he was very clear.  He used the term “so-called right to privacy.”

CARLSON:  Well he was right.

ANDRONICI:  He talked about Roe being wrongly decided in a brief that he co-authored in Rust v. Sullivan we have every reason to be extremely skeptical of this man‘s willingness to (INAUDIBLE).

CARLSON:  Well, you know what, Justine, I hope you‘re absolutely right.  I hope this guy turns out to be your worst nightmare but I know he‘s not going to be and that saddens me but I thank you for coming on to debate it anyway.

ANDRONICI:  Thank you for having me, Tucker.

CARLSON:  Thanks.

Well, to further discuss this issue, we welcome back an always interested party, our favorite, Air America‘s Rachel Maddow, Rachel thanks.

RACHEL MADDOW:  Hi, Tucker.

CARLSON:  Now where is the right to privacy in the Constitution?  I was thumbing through my Constitution today.

MADDOW:  Oh, come on.

CARLSON:  I‘m serious.  I couldn‘t find it.  Where is it?

MADDOW:  I heard that exact line from Scalia at a speech once and I...

CARLSON:  Did you really?

MADDOW: ...and I stood up and I quacked at him.

CARLSON:  I am honored to have unknowingly stolen a line from the great Justice Scalia.  Where is it though?

MADDOW:  The privacy...

CARLSON:  It‘s not in there.

MADDOW:  The right to privacy, do you want me to talk about the penumbra of the Constitution or do you want to talk about whether or not Roberts—whether or not Roberts is (INAUDIBLE).

CARLSON:  You know the point I‘m making, which is let‘s just back up a tiny bit and all of this sort of, oh there‘s a right to privacy, I love privacy.  I wish there were a right to privacy in the Constitution.  There isn‘t.  And I think it‘s just important to remind people that there is no place in there in that little read, much revered document that says you‘ve got a right to privacy.

MADDOW:  I think that right now if you asked most jurists in the country, people would say that there is a settled accepted right to privacy in this country and that‘s why when you start talking about the right to privacy you don‘t actually have to go back to square one in order to talk about it because you have all these precedents that have established it.

We have precedent and we have the Constitution and that‘s how we make law in this country.  The Constitution is not a dead document.  We have precedents that derive from it.

But what happened today with John Roberts is that we had a guy who‘s been a judge for less than three years.  He‘s been nominated to be the youngest chief justice in 200 years. 

He said he disagrees with a lot of the stuff that he‘s ever written that we‘ve seen in terms of his public record and then he refused to answer any questions about what kind of judge he‘ll be.  I think it was creepy.  I think it was a very creepy day.

CARLSON:  Well, no, actually he—he answered a lot of questions I thought pretty directly.  I mean the headline here clearly is Roe v. Wade as a decision, he said, is “worthy of respect.” 

I can tell you having spent a lot of time in the right wing world that anybody who deeply, viscerally hated that decision, as say I do, would not be able to force the phrase “worthy of respect” from his lips, even at gunpoint.  They just wouldn‘t be able to do it and he was able to do it.  It tells you a lot.

MADDOW:  But this guy is such a politician.  It was incredible dodge balling.  I was watching the right wing blogs all day today because I was interested in how he was going to be received on the right and people were saying, “Wow, that was an incredible duck and weave on Roe v. Wade.”  He‘s basically playing political dodge ball.  This guy ought to be a politician instead of a judge.

CARLSON:  Well, that‘s because a lot of the conservative groups are completely in the pocket of the Republican Party.  They‘re not ideologues.  They‘re merely partisans just, you know, barking when told to by the White House and they‘ll do anything the Bush people want them to and that‘s why they‘re corrupt and that‘s why I don‘t pay any attention to them.  But the people who actually care about ideas and beliefs looked I think at this and, ooh, got the chills.

MADDOW:  I don‘t think so.  I think he said, yes, there‘s a right to privacy, which I don‘t think is controversial, present company excepted.  He said, yes, there‘s a right to privacy but does it apply to a woman‘s body?  Oh, next question please.

You know, of course I believe in upholding precedent unless there‘s a reason not to.  On the gay rights case he said lawyers should be able to argue both sides of any case so what‘s your opinion on that case that you participated in?  Well, next question please.

CARLSON:  No, no, but...

MADDOW:  He dodged and weaved all day.

CARLSON:  But just to clarify, lawyers ought to be able to argue either side of a case.

MADDOW:  Right.

CARLSON:  And they do when called upon.

MADDOW:  That‘s an axiom.  That‘s not an answer.

CARLSON:  He was not—it‘s literally an axiom, you‘re right.  He was not called upon.  He volunteered.  This was not a case for which he was paid.  This was pro bono work he chose to do.

MADDOW:  Right.

CARLSON:  Therefore, I think it‘s very revealing of the kind of person he is.  He chose to do gay rights work I mean.

MADDOW:  But why doesn‘t he answer how he feels about the outcome of that case?  I want to know what he thinks about that case not what he decided to do as an academic (INAUDIBLE).

CARLSON:  You know what‘s going on.  There are a lot of groups in Washington that raise a lot of money with scary letters like this.  He‘s going to roll back the clock, back alley abortions, segregated water fountains, do you know what I mean?  So, they can‘t see reality.  They can‘t see that Bush is actually kind of liberal on a lot of things, unfortunately, and that this guy is too, unfortunately.

MADDOW:  I think that Bush is no liberal.  I think that this guy is no liberal.  And I think the fact that he‘s going to become the youngest chief justice in 200 years and I don‘t know whether or not he thinks that my government should be allowed to force me to carry a child to term, if I accidentally get pregnant, I think that‘s weird and I think that he should answer those questions and I think it‘s weird that the Republican strategy here is to tell him don‘t answer any Democratic questions.

CARLSON:  Right.

MADDOW:  I find that not a real hearing.

CARLSON:  On that I agree with you.

MADDOW:  Yes.

CARLSON:  I do think it would be nice to have a guy get up there and say “This is what I believe,” you know and the Republicans have the majority in the Senate but they‘re weak and they‘re disorganized and their leadership is bad so they can‘t, you know, force him through.  But a real conservative ought to be able to get up and say “This is what I believe.  Here‘s why.  Let me convince you” and win.

MADDOW:  Yes.

CARLSON:  They control the Senate.

MADDOW:  He‘s only been a judge for less than three years.  Up until then, he was basically a partisan lawyer guy so he should be able to say what he thinks about stuff but the Republicans are telling him don‘t answer any questions and so we‘re left basically being asked to approve of this guy for the next 45 years with no understanding of his beliefs.

CARLSON:  Well, they shouldn‘t be ashamed of what they believe. 

You‘re not ashamed of what you believe, Rachel.

MADDOW:  Absolutely.

CARLSON:  That‘s why I like having you.  Thanks a lot.

MADDOW:  Thanks, Tucker.

CARLSON:  Coming up, the crisis in New Orleans really began when its levee failed but could residents of that city soon be drinking non-contaminated water?  Yes, they could.  We‘ll tell you why.  Stay tuned.

(COMMERCIAL BREAK)

CARLSON:  In just a matter of hours, Hurricane Katrina dumped billions of gallons of water into New Orleans.  It will be a matter of years before that city fully recovers but the recovery is already in full swing.

NBC News‘ Tom Costello files this report.

(BEGIN VIDEOTAPE)

TOM COSTELLO, NBC NEWS CORRESPONDENT (voice-over):  Two weeks into the Herculean fight to reclaim New Orleans from the lake and canals that drowned it there is progress.  The uptown business district and French Quarter hope to have drinkable water by the end of the week.  Repair crews still struggle to clear the debris away from sunken pumps but 40 are running.

COL. DUANE GAPINSKI, ARMY CORPS OF ENGINEERS:  If you want to see what progress we‘ve made just point the camera at that building right there and you can see that we‘ve drawn down the water about six feet in this area.

COSTELLO:  Nine billion gallons of water each day pumped out of all three city canals and the parishes east of the city.

(on camera):  All of it carefully calculated, these massive pumps sucking water out of the city and carrying that water across what was the break in the canal, this breach which has now been covered over with gravel and spitting that water back into the canal at 1,500 cubic feet per second and then sent downstream to Lake Pontchartrain.

(voice-over):  Today, the EPA was once again checking for contamination.

GARY MOORE, ENVIRONMENTAL PROTECTION AGENCY:  We‘re pretty much doing a full sweep organics, metals, pesticides, herbicides, PCBs and biologicals.

COSTELLO:  But with no sign of disease so far the mayor is anxious to reopen parts of the city to business.  The city is out of money and can‘t make its payroll.

RAY NAGIN, NEW ORLEANS MAYOR:  Well, we are working very feverishly with banking institutions, with financial folk, as well as federal officials to secure a line of credit that will sustain us at least until the end of the year.

COSTELLO:  But there was good news today.  Louis Armstrong Airport reopened for passenger business and the first cargo ship is expected to dock tonight.  In a city devastated by water but desperate for the economic life line it provides.

Tom Costello, NBC News, New Orleans.

(END VIDEOTAPE)

CARLSON:  We have another report from Reuters just in at this hour. 

Apparently gunmen dragged 17 people out of their homes in the town of Taji.  That‘s just north of Baghdad in the early morning hours, pulled them out of their homes and shot them in the street.  We don‘t know who the people were.  We don‘t know why they were murdered.  We just know it happened.  We‘ll tell you more when we find out.

Coming up, despite the indescribable trouble in New Orleans there are signs of hope in that city (INAUDIBLE) signs of business have begun to appear.  A man responsible for the return of commerce joins me next.  Stay tuned.

(COMMERCIAL BREAK)

CARLSON:  New Orleans, of course, is a port city, one of the most important ports in the country, the fifth biggest and it‘s been closed down since Hurricane Katrina hit over two weeks ago.  Well, tonight that port saw its first shipment.  A barge came in, the first since the storm.

Gary Lagrange, who is the CEO of the Port of New Orleans joins us tonight.  Mr.    thanks a lot for coming on.  How bad was the damage?

GARY LAGRANGE, CEO, PORT OF NEW ORLEANS:  Well, Tucker, it‘s pretty severe.  It‘s the worst I‘ve ever seen in my lifetime.  I‘ve been in several hurricanes but this was a huge hurricane with a huge eye that just sort of dwelled over the city for a long period of time.

CARLSON:  Why is the port open while lots of other things in New Orleans aren‘t?  I mean did you all just get right to reconstructing it immediately?

LAGRANGE:  Yes, it was a target and I understand the Louis Armstrong Airport opened today.

CARLSON:  Yes.

LAGRANGE:  So, we give credit and kudos to my good friend Wally Williams (ph) and those people for doing that.  But our target with the port was to open we were told six months two weeks ago and we just felt like it was a psychological thing that we needed to do for all of our customers around the world, China, Japan, Brazil, Antwerp, Europe. 

We needed to let them know that we were in business and the Port of New Orleans is coming back.  It‘s a port that serves 62 percent of the consumer spending public of America and we just needed to be there and get that message out.

CARLSON:  Well, give us some details on that.  I think most people don‘t think about where their goods come from.  I know a lot of plywood and coffee come into the Port of New Orleans but tell us what comes in and out of there.

LAGRANGE:  Well, New Orleans is the largest importer of steel.  It‘s the largest importer of rubber, largest importer of plywood and wood products.  It‘s the largest importer of coffee, depending on who you talk to.  We‘re either number one or two, New York, New Orleans, New York, New Orleans every year. 

And, it‘s the largest importer of the London Metal Exchange, certified London Metal Exchange, precious metals, copper, lead, zinc, aluminum and so on and so forth, and the second largest exporter of chickens in the United States.  So, that‘s pretty huge and we feel as though we need to get back on track as soon as we can to placate our customers.

CARLSON:  Now, did the storm change the course of the river, the topography in any way?

LAGRANGE:  Not really.  It was surprising.  The topography of the river is pretty much the same.  It‘s unchanged.  The pilots are telling me and the Corps of Engineers are telling me, NOAA is telling me, National Oceanic and Atmospheric Administration people that we‘re back to 45 feet, which is project depth.

It‘s still open only sunup to sundown but it‘s two way traffic.  Soon we hope to be in five to seven days open 24 hours.  The topography has not changed so we‘re pretty good and pretty lucky in that respect.

CARLSON:  Well, I know people were afraid to go out into Lake Pontchartrain last week for fear of things floating just beneath the surface in the water.  Do you have those fears about the river?

LAGRANGE:  Not really.  We‘ve had a good survey done.  Again, the NOAA people, the Corps of Engineers, the Coast Guard and the pilots themselves have been really responsible and reactive in determining that the river is safe.  The river actually was opened to 39 feet two days after the storm all the way up to the grain elevators, the petrochemical plants north of here and also to the port as well. 

We‘ve seen two days after the storm 15 to 20, 25 ships a day going by taking the harvest of the Midwest from mid-America where 60 percent of the grain is exported out of the United States through this port to its final destination, mostly in Asia.

CARLSON:  Now, are all your longshoremen back?

LAGRANGE:  No, not all of them are back but we got about 300 of them back.  That‘s about 30 percent and we feel really good about that enough to offload ships today, two or three more ships later this week and early next week, so we‘re ramping up.  We‘re getting to the point of where people are coming back.

Secretary Mineta has been fantastic.  John Damian (ph) with the Maritime Administration in bringing Maritime Administration ships in to actually house up to 1,000 port-related workers who are homeless, who have lost everything.  That‘s huge.

CARLSON:  That is huge and opening the port is huge.  Congratulations, Gary Lagrange, CEO of the Port of New Orleans.  I‘ll think of you as I drink coffee in the morning.

LAGRANGE:  Thanks.

CARLSON:  Thanks.

LAGRANGE:  Thanks, Tucker.

CARLSON:  Still ahead on THE SITUATION is Mr. Lagrange‘s testament the people of New Orleans are up to the task of restoring their city to its previous greatness.  We‘ll show you images of the town already bouncing back when we come back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

NAGIN:  New Orleans is coming back.  We‘re bringing New Orleans back.  We‘re bringing its culture back.  We‘re bringing its music back.  I‘m tired of hearing these helicopters.  I want to hear some jazz.

(END VIDEO CLIP)

CARLSON:  Jazz, the only truly American form of music.  We look forward to that.

We‘ll leave you tonight with the sights and sounds from a city already on the mend.  Thanks for watching.  We‘ll see you tomorrow night.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  We only walked out with the clothes on our back and so this money whatever they give us it means a lot.

UNIDENTIFIED MALE:  This is Mardi Gras.  This is New Orleans.  Yes, everything can be replaced.  It‘s going to take time.

UNIDENTIFIED FEMALE:  And I never lost my faith in Go because I know he‘s there by my side.  Over hills, over rivers he was going to get to me.  He was going to find me.  My husband found me.

NAGIN:  We‘re bringing New Orleans back.  We‘re bringing its culture back.  We‘re bringing its music back.

UNIDENTIFIED MALE:  You know if you survive Mardi Gras we can survive this.

(END VIDEO CLIP)

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

END   

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