updated 9/30/2005 10:42:24 AM ET 2005-09-30T14:42:24

Guest: Dick DeGuerin, Molly Ivins, Susan Molinari, Barbara Boxer, David

Gergen, Charles Grassley

CHRIS MATTHEWS, HOST:  He's got his Rehnquist replacement.  Now comes the hard part.  How far right does President Bush dare to go in replacing Sandra Day O'Connor? 

Let's play HARDBALL. 

Good evening.  I'm Chris Matthews.

John Roberts was sworn in as the 17th chief justice of the United States, after winning confirmation by the U.S. Senate, catch this number, 78-22. 

(BEGIN VIDEO CLIP)

JOHN G. ROBERTS, SUPREME COURT CHIEF JUSTICE:  I will try to ensure, in the discharge of my responsibilities, that, with the help of my colleagues, I can pass on to my children's generation a charter of self-government as strong and as vibrant as the one that Chief Justice Rehnquist passed on to us. 

(END VIDEO CLIP)

MATTHEWS:  The 50-year-old judge, the successor to the late William Rehnquist, will be responsible for interpreting the laws of this country for decades to come, whether women have a right to an abortion or whether a state can let someone get help in ending their own lives. 

What kind of a fight is coming for the next Supreme Court nominee?  Will a hot debate help President Bush by drawing the heat from Iraq, Katrina and even Tom DeLay's problems? 

Let's begin with NBC chief White House correspondent David Gregory. 

David, a good feeling down there I guess, today, huh? 

DAVID GREGORY, NBC WHITE HOUSE CORRESPONDENT:  I think there is. 

Ironically, this is the sort of the high point, the Roberts nomination of the president's second term.  Some White House aides have said, rather darkly, that that's a sign of how bad things have gotten here, when that's the high point.  He was not really controversial from the start, such a brilliant legal scholar.  Those on the right and the left agree on that point.  And he had smooth sailing.  And it was really a very deft choice, everybody admitted from the start.

And, as you point, I think that they're in for a much rougher ride here the second time around. 

MATTHEWS:  Well, let's talk about the intel they have gathered.  They had pretty smart guys going up the Capitol, Ed Gillespie, the former chairman of the Republican National Committee, former U.S. Senator Fred Thompson from Tennessee, a very smooth lobbying campaign that produced 78 votes.

Did they know where the enemy lies?  Is there a strategic problem on the other side, whereby Democrats, half of them voted for this guy so they would be poised and have the street cred to come back and whack the next one?

GREGORY:  Well, I think they realized, at some point in the game, that, in some measure, it was the force of other events, but it was also just the force of this particular nominee, a Washington insider, somebody who was really vetted for years and year, vetted himself in that sense, and steered clear of any kind of controversy.

He certainly had a paper trail, but they were able to resist the efforts to get some documents from when he was in the solicitor's general office and the Justice Department.  So, that part of it was sort of argued very well.  And just the strength of the candidate himself and his history before the Supreme Court and just his credentials spoke for themselves. 

I think they realize now that, while there were some Democrats who

voted against him for, in their view here in the White House, no real

reason at all, there are Democrats who supported Roberts for purely

tactical reasons, to make the argument that now that they'll oppose

somebody because they weren't in the model of Roberts, that they were too -

·         farther to the right of him. 

And so expect that.  And there's certainly a movement—and you just pointed this out, Chris—among conservatives, they want a fight now.  They want to shift the focus from Katrina and Iraq to a kind of values debate, a cultural debate and—and wage a battle that the president can win, even if it requires breaking the filibuster with the nuclear option in the Senate. 

MATTHEWS:  Is the president willing to be risky enough to go right enough, say, a couple notches to the right of Roberts, even if it means maybe having this rejected by filibuster? 

GREGORY:  I think so. 

I think the president may welcome that fight at this point.  There are certainly some within the White House who want that fight and, as I just mentioned, other conservative who do as well.  I think there's a lot of pressure for him to name a woman to replace Sandra Day O'Connor.  He certainly had a good bit of attention on women in the vetting process, in the interview process last time, didn't select one. 

Laura Bush, the first lady, has weighed in, saying that she thinks there should be a female who replaces Sandra Day O'Connor.  So, that pressure is there.  But that doesn't mean that he won't take it a few clicks to the right among some of the candidates who are out there. 

Chris, I also think it's possible that Bush may take the advice of some Democrats, try to use their words against them in a way, like Pat Leahy, and pick somebody outside the judicial monasteries, as Senator Leahy and others have advised the president to do, pick somebody who's not a judge, who doesn't have a paper trail, who has got a different set of life experiences to bring to the court. 

MATTHEWS:  Harriet Miers, the deputy chief of staff at the White House, what do you think? 

GREGORY:  Right. 

Yes, just one idea that comes to mind.  And she would also fit the bill of somebody who's close to the president, who he's comfortable with and has worked with for so many years.  But we also know that that would also apply to Alberto Gonzales.  And having the first Hispanic on the Supreme Court for this president I think would be an extremely attractive and historical option to him. 

(CROSSTALK)

MATTHEWS:  Go ahead.  I'm sorry. 

(CROSSTALK)

MATTHEWS:  I'm sorry.  Go ahead.  Go ahead, David.

GREGORY:  No, I apologize, Chris.  You go ahead. 

I'm sorry.  I was just going to say that I think some people were lulled into that thinking before on Alberto Gonzales, that, because he was comfortable with him, that he was a shoo-in and so we were sort of taken off course.  So, you know, who knows. 

MATTHEWS:  I was thinking how shrewd something you just said was, that maybe—you know, no politician looks good when they're up against God.  But when they're up against the opposition, they begin to look a lot better. 

This administration is having a tough time with things like DeLay and Katrina and Iraq.  But if they can show the ugly side of the—they would like to see the ugly side of the Democratic Party, where it looks rejectionist, they may want to put on a full-court display of the Democratic opposition to a court nominee this fall...

GREGORY:  Right. 

MATTHEWS:  ... so people say, well, maybe I don't like the Republicans too much, but they look better than the Democrats.  Is that what you are saying, in terms of this fight coming up? 

(CROSSTALK)

GREGORY:  Well, yes. 

And I—I—I think it's also just purely divisionary, which a president who has got 40 percent approval ratings needs to do.  But I think it's something else.  It dovetails into a larger argument that they make around here, which is that the Republican Party is still the party of ideas.  Now, the Republican Party, as you've been talking about, we have been talking about, certainly has its problems right now, with corruption charges and scandals that are also hitting the White House. 

But they can say, alternatively, that that may be all the case, but the Democrats don't have alternative ideas.  They can make this argument, and they're just rejectionist when it comes to qualified candidates.  They could certainly make that case when it came to Roberts.  And that's where the bar is so high for the president to choose somebody who is so, so qualified, as Roberts was.  It was very difficult to mount an argument against John Roberts that he was not qualified, maybe a little too conservative for some, but certainly qualified.

MATTHEWS:  It's great to have.  Thank you very much, chief White House correspondent..

GREGORY:  Sure.

MATTHEWS:  ... David Gregory for NBC. 

I'm joined right now by Republican Senator Chuck Grassley of Iowa, who voted in favor or Roberts today—he's also a member of the Judiciary Committee—and by Democratic Senator Barbara Boxer of California, who voted against Roberts.

Senator Grassley, do you advise, if the president were listening to you right now, for him to go a bit to the right or to stay right on the mark he was with Roberts? 

SEN. CHARLES GRASSLEY ®, IOWA:  Well, I think the answer to your question is, stay on the mark with Roberts, but I think that that's also to the right, in the sense that at least it's in the same vein as Rehnquist being right. 

MATTHEWS:  So, you believe that—the Judge Roberts, Chief Justice Roberts, is as conservative as the late Chief Justice Rehnquist? 

GRASSLEY:  Oh, I don't know.  But I know that he handled himself very well and he—and when somebody tells me that he's going to take no personal agenda to the bench and that he's going to see everything within the four corners of the law and the four corners of the facts of the case and make his judgment just on those things and consulting with other people on the bench, that's the sort of justice I think we ought to have, whether it's exactly like Rehnquist or not. 

MATTHEWS:  Let me go to Senator Barbara Boxer of California.

Senator Boxer, thanks for coming on the program. 

You know, I looked at all the potential candidates for president.  Who knows who is going to announce when it comes down to it.  But you have got four of the five of the Democratic presidential hopefuls for 2008 voted against Roberts.  Biden, Senator Clinton of New York, Senator Kerry of Massachusetts, and Senator Evan Bayh of Indiana all voted against him, while Senator Feingold voted for him.  Is this a litmus-test issue for the Democratic presidential nomination?  You have to be against a guy who's pro-life? 

SEN. BARBARA BOXER (D), CALIFORNIA:  Oh, no. 

Let me tell you what is a test for us, and I think a very important test.  And that is, that the Democrats are willing to fight for the people, fight for their rights, their right to privacy, their right to be treated equally, their right to be protected from polluted air and Superfund sites that harm their kids. That's what we're interested in.

It's not about how you try to phrase it, you know, liberal, left, right.  It's about...

MATTHEWS:  No, pro-choice or pro-life on abortion rights is how I phrased it. 

BOXER:  ... rights and freedoms.

Well, here's what I believe.  You and I don't agree on this issue, but the bottom line of it is, whether you trust individuals and families to make decisions or whether you want state legislatures, you know, getting into your private life.  And the vast majority of the American people trust our families.  And most Democrats do, although some take the other side. 

MATTHEWS:  Well, the reason I asked it is, do you believe that someone who's pro-life, in other words, opposed to abortion rights, could be the nominee of the Democratic Party? 

BOXER:  Well, wait a minute.  I thought we were talking about Roberts. 

Now we are talking about who could be the nominee.

MATTHEWS:  No, I'm just asking about the voting pattern today.  What's interesting...

BOXER:  Oh, I don't think—I don't think the people would—I think it's possible, but I think that the voters in the Democratic Party and, frankly, voters nationwide are pro-choice. 

They don't want to see Roe overturned.  Roe was a very modest decision that gives the woman the right to choose in the very early stages of the pregnancy.  And, thereafter, it balances the various rights and gives the states the right to interfere in that decision.  But Roe is something that's broadly supported. 

And so I do think that a Democratic candidates will more than likely be supportive of Roe. 

MATTHEWS:  Let me go to Senator Grassley.

Let me ask you about this nomination; 22 Democrats voted against it.  Is that what you're going to face automatically against any nominee?  It won't get any smaller than that? 

GRASSLEY:  Well, not—not just because of that. 

I think that there's a difference between Republicans and Democrats on this point.  Remember that all but three Republicans voted for Ginsburg, even though, politically, she was involved in so many things before she became a judge.  We just could not agree with her.  But she was totally qualified. 

But we had a lot of fringe groups on the right of us who urged us to vote against her, because maybe one of them would have been that she was pro-choice, let's say.  We don't have the loyalty to our fringe groups that I think Democrats have to their fringe groups, the ACLU and the consumers union and the environmentalists, etcetera, etcetera. 

MATTHEWS:  Well, why was your vote unanimous today, then?

GRASSLEY:  Well, because of the loyalty of the Democrats to their fringe groups, as opposed to Republicans, vis-a-vis Ginsburg, not having that same loyalty to Republican fringe groups. 

MATTHEWS:  But if most people watching this or reading about it in the papers tomorrow may look and see, well, the Democratic Party was split 22-22.  And the Republican Party was unanimous, slam-bang, slam-dunk, 55 votes to zero.  They would say one party was regimented and the other party was more independent-minded. 

GRASSLEY:  No, not if you compare Republicans, how we all voted for Ginsburg, and we were doing it based upon her qualifications to be a very good judge, even though we disagreed with her philosophy. 

And we found Judge Roberts to be fully qualified and we voted for him based upon qualification, as opposed to his personal philosophy, to which we didn't really find much about, to be honest with you.

MATTHEWS:  Senator Boxer, you voted against the nomination today.  But many Democrats who are usually very concerned about rights and the issues you are concerned about voted for him today. 

But they seemed to leave a kind of a message, which was, be careful the next time, Mr. President. 

How do you read those votes, those 22, some of them very liberal members, who are concerned about the rights issues you have raised...

BOXER:  Yes. 

MATTHEWS:  ... who did vote for him, Senator Leahy, for example, ranking member?

BOXER:  Absolutely. 

And I do agree that the Democrats, if you look at us in this particular vote, you see that we went with our conscience.  We went with the bar that we set.  Now, I set a certain bar, and others set a different bar.  My bar was, I have to look into the eyes of my constituents and tell them that I am positive that their rights and freedoms and liberties will be protected. 

I couldn't do it, because as Senator Grassley said, we didn't know much about this nominee.  Judge Ginsburg was really an open book.  I mean, it's true that she didn't answer every question, but her writings were prolific.  We knew a lot more about her. 

My colleagues you asked on the other side had a little bit of a different bar.  Once this became the replacement for Rehnquist, it was kind of a swap.  Probably, Roberts is going to be like Rehnquist.  But this next seat is Sandra Day O'Connor.  So, rather than have the president put up someone like Roberts, I want him—I hope he does this—if we want to get America together on the same page, he should make a nomination of someone just like Sandra Day O'Connor, someone very mainstream. 

MATTHEWS:  Do you expect that will happen? 

GRASSLEY:  I would suggest...

BOXER:  I hope so. 

And, I will tell you, Senator Specter suggested to President Bush that he ask Justice O'Connor to stay on the bench through this term, and that she would be willing to do so. 

MATTHEWS:  Right. 

BOXER:  If we really want to bring ourselves together, wow, this would be so good for our country right now, as we battle on so many other fronts. 

MATTHEWS:  Do you think that will happen? 

BOXER:  I wish it would.  I don't think so.  But I wish it would. 

MATTHEWS:  I wonder.  I don't think the president is too happy with Sandra Day O'Connor's voting record.

Anyway, thank you very much, Senators.

BOXER:  Well...

(LAUGHTER)

MATTHEWS:  Senator Charles Grassley and Senator Barbara Boxer.

Coming up, one—one more vacancy to fill on the Supreme Court.  Who might President Bush choose to replace Justice O'Connor?  We will preview that fight in a moment with Pat Buchanan and David Gergen.

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, Chief Justice Roberts' impact will be felt for decades, more than any president.  So, what can we expect from the Roberts' court?

HARDBALL returns after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

With John Roberts sworn in today as chief justice of the United States, who will President Bush choose to replace Sandra Day O'Connor? 

MSNBC's chief Washington correspondent, Norah O'Donnell, joins us now. 

Norah, you're leading the way on this issue.  I'm so fascinated with the choices you think the president might make on this. 

NORAH O'DONNELL, NBC CHIEF WASHINGTON CORRESPONDENT:  Well, we are hearing from multiple sources in the administration and Congress, Republicans that are close to the White House, that the president will likely wait until next week to announce who he is going to choose to replace Justice Sandra Day O'Connor. 

The president has a short list before him.  Some sources say that includes women and minorities.  The president himself has indicated that he may lean that way.  Earlier this week, he said, I'm mindful that diversity is one of the strengths of this country. 

So, we have all been looking at the list of people that would create diversity on the Supreme Court.  And, of course, at the top of the list have to be members of the president's inner circle.  And that includes the current attorney general, Alberto Gonzales, who, if named and if confirmed, would be the first Hispanic on the Supreme Court. 

He would also probably be a very controversial pick.  The Democrats have liked him.  And even the Democratic leader in the Senate has said he could be a choice that they could agree on.  But conservatives don't think he's socially conservative enough. 

Another member of the president's inner circle that may be at the top of the list and certainly getting a lot of buzz is Harriet Miers.  She's the president's White House counsel, former deputy chief of staff, who has served the president loyally, quietly, for more than a decade.  The president once described her as a pit bull in size six shoes.  She's never been a judge.  She's certainly a lawyer, but she doesn't have a paper trail.  So, she would be a very unusual choice, but probably one who doesn't have much of a paper trail.  And who knows kind of fight, because she's just clearly an unknown, somewhat very shy and reserved, a workaholic, described by others.

And then there are another list of other women and minorities the president could appoint as well. 

MATTHEWS:  Thank you, Norah O'Donnell, MSNBC's chief Washington correspondent.

We're joined right now by MSNBC political analyst Patrick Buchanan and former presidential adviser David Gergen, who is now with the Kennedy School of Government. 

David, I want to start with you.

The president won a big one here, 78-22, given the—sort of the global heat we're putting up with now in these fights, an amazing victory.  Can he replicate it? 

DAVID GERGEN, FORMER PRESIDENTIAL ADVISER:  Hard. 

The pool of people out there doesn't seem to be—doesn't seem to have a Roberts in.  It doesn't seem to be one he pulls out of the hate, as he did with Roberts.  And, by the way, Chris, I think he deserves a lot more political credit for the Roberts victory than he's getting.  Only a year ago, of course, conventional wisdom was, he was going to have a huge donnybrook on his hands.  He didn't.  He won, won big. 

But people have discounted it.  And they are looking—they're already over and beyond, of course, as we are right now, to who's next. 

MATTHEWS:  Does Michael Brown have a law degree, David? 

(LAUGHTER)

GERGEN:  He doesn't have directions to the Supreme Court.  He doesn't know how to get there. 

(LAUGHTER)

MATTHEWS:  You're worse than I am.

Patrick...

(CROSSTALK)

GERGEN:  They're going to put him in a man-in-space program. 

(LAUGHTER)

MATTHEWS:  It is astounding to see how successful and how well-done the vetting here and the lobbying was done for Judge Roberts.  It was a smooth sail and it was brilliantly handled and a brilliant suggestion, or selection, as David said.  And then you have this other weird thing going on over at Federal Emergency Management with a guy from the Arabian Horse Association. 

But let's look at the next one.

Pat...

PAT BUCHANAN, NBC POLITICAL ANALYST:  Sure.

MATTHEWS:  ... does he lean a little to the right this time and risk a filibuster? 

BUCHANAN:  I think he's got to, Chris. 

And you mentioned FEMA and Brown.  That is a problem for the president in this sense.  He cannot go with a crony who's not visibly and manifestly as qualified or almost as qualified as Roberts.  Now, they mentioned—I'm sure Ms. Miers is a fine lawyer.  But there are no—no one in 1,000 people would you select her for the Supreme Court, unless she was a personal friend of the president. 

I think the president has got to go for extraordinary quality, intelligence and visible ability.  Secondly, I believe he has to, for his base, he's got to go for someone who is in the Rehnquist, Scalia, Thomas mold. 

(CROSSTALK)

MATTHEWS:  Will it be a woman appellate judge? 

BUCHANAN:  I think you could have a woman appellate judge, but it would have to be an Edith Jones, I think, or a Janice Roberts Brown or Priscilla Owen.  And it's got to be someone who's going to excite and energize his base to go to battle for them, because other side, Chris—this one is to replace O'Connor, not Rehnquist. 

MATTHEWS:  For two reasons.  He wants the fight and he wants to solidify his base.

BUCHANAN:  Well, more than that.  George Bush, I believe, wants to have a Roberts court.  You can't have a Roberts court if you have got three conservatives and four liberals and two swing votes. 

MATTHEWS:  The legacy issue, is that so important?  Is that the key point for the president, David?  He wants to leave a conservative court behind? 

GERGEN:  I do.  I think that is exactly right.

I'm not sure he would go to—I think Pat is right.  He's going to go to his right.  I think he's going to do that, not just because it's politically for himself—to shore himself up with the base, but because I think that's what he believes in.  I think that's what he got elected to do, in his view.  And his base believes.  That's why they turned out four million volunteers in the last campaign to help push him through and get—and propel him forward. 

And for him to turn his back on his base now would be a real surprise, I think.  And I think it would bring a revolt on the right.  But if he goes for any one of the justices Pat named, we are going to have one heck of a fight on our hands.  And it may well lead to a filibuster and then the nuclear option.  And, if they vote the nuclear option, then his capacity to govern for the next three years will be seriously handicapped. 

BUCHANAN:  Well...

MATTHEWS:  We will be back with Pat Buchanan and David Gergen after this. 

And, later, reaction from Texas to Tom DeLay's indictments from the people at home in his district, very interesting stuff.

You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We are back with MSNBC political analyst Pat Buchanan and former presidential adviser David Gergen.

I want to go to Pat first.

The question of October.  Will the president risk a filibuster, a nuclear option, the whole shebang, to get a conservative in the court, a real conservative? 

BUCHANAN:  He's got to. 

He's going to make a choice that's going to antagonize either Reid and Leahy and Schumer and Feinstein, all the rest of them, or it's going to be a choice that's going to alienate and break the hearts of his base.  What do you naturally do?  You go with your own people first. 

Secondly, a bench-clearing brawl in the middle of the field is exactly what the president of the United States needs now.  Get Katrina and all the rest of it behind him. 

(CROSSTALK)

BUCHANAN:  Look, Nixon went to the mat for Haynsworth and Carswell. 

We got waxed on both of them.  And we got the South as a booby prize.

MATTHEWS:  Why have a boring hockey game when you could have a real fight, right? 

(LAUGHTER)

BUCHANAN:  Well, that's...

MATTHEWS:  That's what you're saying.

David Gergen, do you agree to that a bench-clearing brawl—I love that language...

(CROSSTALK)

MATTHEWS:  ... is what the president needs to distract from his other problems, solidify his base and change the subject and build a court for the future?

(CROSSTALK)

GERGEN:  It's wonderful to hear Pat Buchanan go back to the days at Gonzaga, when brawls were the name of the—were the name of the school.

The—I'm not at all clear about that.  But I do think he—politically, it does help him to go to his base.  But I do—Pat said something that's very interesting and important about Harriet Miers, the White House counsel, in that—because she's suddenly the center of all this speculation, that maybe that's his conservative. 

I mean, she is a distinguished woman, but I think the point about cronyism is right.  And Pat is—I mean, nobody has thought about the fact that Roberts really has raised the bar.  And it makes it more important to find somebody who has strong qualifications.  I think that's right.  And I think he does need to find somebody who has strong qualifications, as well going to the...

(CROSSTALK)

MATTHEWS:  What happens if you go after this next nominee and it's somebody who doesn't know all these cases, and these guys like Schumer start, what do you think about this case; what do you think about that case? 

GERGEN:  Exactly. 

MATTHEWS:  And you say, well, I'm not familiar with that.  I'm not familiar with that one. 

BUCHANAN:  Exactly.   

Then the Democrats have an argument which is not ideological.  They say, look, this is not up to the standard of the quality of Roberts. 

(CROSSTALK)

BUCHANAN:  We asked you to send us another Roberts.  And they reject him. 

GERGEN:  Right. 

MATTHEWS:  Well, this is gone to be an Oktoberfest of fighting over this.  It should be coming out early next week, the nominee, perhaps as early as Monday, after the president confers with his number one counselor, Laura Bush, who wants a woman. 

(LAUGHTER)

MATTHEWS:  Thank you, Pat Buchanan.

And, thank you, David Gergen.

GERGEN:  Thank you. 

MATTHEWS:  Up next, the indictment of Tom DeLay.  We will hear from his constituents down in Texas. 

Plus, we will be joined by DeLay's lawyer, Dick DeGuerin.  And we will get reaction from syndicated columnist Molly Ivins, no fan of DeLay's. , and former U.S. Congresswoman Susan Molinari, a close friend's of DeLay's. 

You're watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

A day after the indictment of House Majority Leader Tom DeLay, we wanted to see what has been the reaction to Tom DeLay's indictment back home in his district, interesting look we are going to give you now.

HARDBALL correspondent David Shuster joins us now from Sugar Land, Texas—David. 

DAVID SHUSTER, NBC CORRESPONDENT:  Well, Chris, Tom DeLay certainly has supporters here, but his district has been changing.  And the political equation may be changing as well in the wake of DeLay's indictment. 

(BEGIN VIDEOTAPE)

SHUSTER (voice-over):  At Vasos Barbecue, Tom DeLay's favorite home district restaurant, the regulars here were quick to rush to DeLay's defense. 

RANDY SWAFFORD, RESIDENT OF SUGAR LAND:  I feel like that it's mostly just a witch-hunt.  Democrats have been after him, trying to get him for several years.  And it doesn't take much to get an indictment. 

SHUSTER:  And the theme that this is all just a Democratic conspiracy is one DeLay said himself on HARDBALL. 

(BEGIN VIDEO CLIP, “HARDBALL”)

MATTHEWS:  And you believe that this is a political vendetta?

REP. TOM DELAY (R-TX), MAJORITY LEADER:  Oh, I know it is. 

MATTHEWS:  A coordinated vendetta by the House Democratic leadership here in Washington?

DELAY:  And Democrat leadership in Texas and Ronnie Earle and, absolutely. 

(END VIDEO CLIP)

SHUSTER:  But Erin Lynch, a constituent of Tom DeLay's, served for 18 months on a grand jury just like the one that indicted him.  Panel members in Texas, she says, weigh the evidence carefully. 

ERIN LYNCH, RESIDENT OF SUGAR LAND:  Well, we are always talking about the cases.  And even overnight, we would think about it and come back the next day and talk about how this should have gone and that should have gone. 

SHUSTER:  A few weeks ago, most lawyers familiar with the campaign money laundering investigation thought it was going away.  The prosecutor, Ronnie Earle, had said he did not expect to indict the House majority leader.  Now:

RONNIE EARLE, TRAVIS COUNTY DISTRICT ATTORNEY:  My job is to prosecute felonies.  I'm doing my job. 

SHUSTER:  Lawyers across Texas are buzzing with speculation about whether Earle recently convinced a reluctant witness to flip and testify for the state. 

DeLay certainly has his enemies.  Hometown critics say they've witnessed the congressman's tactics firsthand. 

TODD PARTIDGE, RESIDENT OF SUGAR LAND:  The lies and rumors that he's put out there to destroy his fellow competitors, his fellow politicians. 

SHUSTER:  Tom DeLay won his election here by 10 points, but it was the smallest margin in years.  And his district has been changing.  This area is turn into a progressive commuter suburb of Houston.  And just steps away from the new Sugar Land Town Hall, there's the liberal Ben & Jerry's and the latte-drinking crowd at Starbucks. 

And for the working-class residents here, the stories about DeLay's extensive foreign trips and links to corporate fat cats are all taking a toll. 

MICHAEL LUNA, RESIDENT OF SUGAR LAND:  He's associating himself with all the, you know, upper class and he's just out of touch, I think.

(END VIDEOTAPE)

SHUSTER:  Locals say it's too early to tell exactly how the indictment will play out for Tom DeLay here in his home district.  But a lot of people, Chris, seem to be watching very carefully. 

There were a number of people today, including lawyers, construction workers and sales clerks, who all had very strong opinions about Tom DeLay, but didn't want to say anything on camera or didn't want to be identified.  The theme seems to be, you don't cross Tom DeLay, even when he's under indictment—Chris.

MATTHEWS:  Thank you, David Shuster, in Sugar Land, Texas.

I'm joined right now by Tom DeLay's attorney, Dick DeGuerin.

Thank you, Mr. DeGuerin.

DICK DEGUERIN, DEFENSE ATTORNEY FOR TOM DELAY:  Hi, Chris. 

MATTHEWS:  Let me get through one thing. 

As I understand, the charge against—one the one count against your client, Mr. DeLay, is that he conspired to break the law in Texas which prohibits corporate contributions to political candidates for legislative races.  Is that right? 

DEGUERIN:  Yes, that's what the indictment said.  But it doesn't say that Tom DeLay did anything. 

MATTHEWS:  What does it say when he conspired, he was part of a scheme?  What does that mean? 

DEGUERIN:  Well, you know, in order to prove a conspiracy, you have to prove that not only that there is an agreement to do something, but that there's an agreement to do something that you know is illegal. 

And they haven't alleged what Tom DeLay did to indicate that.  Not only that, what they've alleged as the crime really is not a crime.  I have to emphasize that no corporate money went to any individual candidates in Texas...

MATTHEWS:  Right. 

DEGUERIN:  ... as a result of this—of TRMPAC.

MATTHEWS:  Well...

DEGUERIN:  The money was kept separate. 

MATTHEWS:  According to the indictment, contributions were made by a number of corporations in Texas.  The contributions were made to the Republican National Committee, and then, as part of the agreement, agreement, apparently—the charge includes that he was part of this agreement—that money was sent back to specific candidates in Texas in legislative races, thereby circumventing the prohibition against corporate contributions directly to candidates.  Isn't that what the charge is? 

DEGUERIN:  Well, that's what the charge is, but that's not what the facts are. 

And for years, a couple of years, the lawyers have been trying to lay out the evidence to Ronnie Earle to show how the corporate money was kept separate.  There was a fire wall between the corporate money that had been lawfully collected and the individual money that had been collected from individuals, which is lawful to give to candidates. 

So, what TRMPAC, the Texas group, did was, they sent their corporate money to the Republican National Committee.  And they sent, the Republican National Committee, sent that money to places where it could lawfully be sent.  Now, at the same time...

MATTHEWS:  Did they agree—did they agree—or was there a stipulation that that money would be returned as contributions to the candidates in Texas? 

DEGUERIN:  No.  And that—that money was not returned.  What the Republican National Committee...

MATTHEWS:  Well, other money was, wasn't it? 

DEGUERIN:  Other money was, that's correct, other money that had been collected from individuals, lawfully collected for the purpose of donating to various state candidacies. 

And that's what happened.  The individual money was kept separate from the corporate money.  Only individual money went to the candidates in Texas. 

MATTHEWS:  Well, here's your client speaking last night, Congressman Tom DeLay of Texas.  Here's what he said last night on HARDBALL in answering the question as to what, in fact, went on here. 

(BEGIN VIDEO CLIP)

DELAY:  They did it completely within the law. 

The Democrat parties and the Republican parties do the same thing over and over again.  You take soft money.  Those were the days of soft and hard money. 

MATTHEWS:  Sure.

DELAY:  You take soft money and use it for legal stuff.  And if you have more than you need, you send it to one of your friends.  It's like your brother-in-law sending you money to pay your rent.  And then you send back hard money that can be used in the races.  It is not a quid pro quo.  In fact, the amount of money you're talking about is different. 

(END VIDEO CLIP)

MATTHEWS:  The congressman said it's not a quid pro quo, but when you listen to him describe it, he says, you send the hard money—or, rather, soft money—to Washington and the hard money comes back as part of the transaction.  Isn't that just what he said? 

DEGUERIN:  What he said was, if you've got the hard money and that's the kind of money that can be given to candidates...

MATTHEWS:  Right. 

MATTHEWS:  ... then that money gets sent to the candidates.  If you've got soft money that cannot be given to the candidates, then you send it to where it can be given to the candidates—I mean, where it be given lawfully. 

MATTHEWS:  Sure.

DEGUERIN:  Either in states that allow that or not.

MATTHEWS:  But how is—how can you—how can you deny—how do you as a lawyer disprove the charge that $190,000 was sent to Washington in the form of corporate contributions to the Republican National Committee for the purpose of having the Republican National Committee send $190,000 back as legal money to those candidates in the legislative races in Texas?  How can you disprove that was not a quid pro quo?

DEGUERIN:  It was not an exchange, Chris. 

MATTHEWS:  How do you prove that? 

DEGUERIN:  Well, you—by laying out the facts and you show how the money was kept separate.  You show the separate bank accounts, which the lawyers have shown to Ronnie Earle and his assistants.  And you trace the money.  Follow the money. 

MATTHEWS:  OK. 

DEGUERIN:  The money went from the corporations to TRMPAC and then back to the Republican Party and back out to...

MATTHEWS:  OK. 

DEGUERIN:  ... places where is it could lawfully be sent. 

(CROSSTALK)

MATTHEWS:  Mr. DeGuerin, what happens if a—what happens if one of the people who have been charged as co-conspirators say that:  I was in the room when Tom DeLay said, send the money to Washington, have it laundered and sent it back as legal contributions? 

Is that the kind of thing you're up against, somebody who's been turned here? 

DEGUERIN:  No. 

In fact, the other people who have been charged have told Ronnie Earle, either directly or through their lawyers, that, no matter what Ronnie Earle offers them, a walk in the park, that they don't have any evidence against Tom DeLay.  Tom DeLay didn't participate in the decision-making process. 

(CROSSTALK)

MATTHEWS:  Well, what did Mr. Earle show to the grand jury to convince them there was a conspiracy in which Tom DeLay had a hand?

DEGUERIN:  Well, I don't know. 

You know, when you control the information that a group of people gets and you don't let any other information in, then you can control what those people think.  And, historically, throughout time, the district attorney has controlled the grand jury. 

MATTHEWS:  Right. 

DEGUERIN:  The district attorney can indict a ham sandwich.  You've heard that said before. 

MATTHEWS:  Sure.  But do you think these grand jury people are thick enough to buy an argument that, simply because Tom DeLay's name appears on the masthead or on the letterhead, he's a member of the board and he doesn't really function as an operative part of the decision-making, that he's somehow guilty of a scheme?  Do you think a grand jury would buy that, simply because his name appears on the literature? 

DEGUERIN:  I think, if you control the information that the grand jury gets, which Ronnie Earle and the district attorney's office did, then all they know is what they're told by the prosecution. 

(CROSSTALK)

MATTHEWS:  OK, let's talk about—let's talk about politics.  We only have a minute here. 

Do you think Mr. Earle is going to try to slow this down, go into slow-mo, slow the ball down, so that there's no trial until next election? 

DEGUERIN:  I think that's what he's going to try to do.  And that's what he tried to do to Kay Bailey Hutchison, same exact kind of thing.

MATTHEWS:  Can you move it up?  Can you demand a speedy trial, that you can go to trial, say, next spring and get this over with in time to clean up the act? 

DEGUERIN:  Chris, I hope we can go to trial before Christmas.  And I'm going to ask the judge if we can.  It's up to the judge.  I think that we can be ready.  I think that we can do what lawyers have to do and dot all the I's and cross all T's by that time. 

(CROSSTALK)

DEGUERIN:  I think we—the facts are known.  And I think we can go to trial before Christmas.  I hope we can.

MATTHEWS:  We are familiar with guidelines that prevent prosecutors from bringing charges right before the election.  That's sort of the—just the basic sort of Marquis of Queensbury rules about politics.  Every judge knows that elections matter to politicians. 

Do you think a judge in Texas would be sensitive enough and shrewd enough to know he better damn well have a fast trial or else he's basically killing your candidate's—your—there's a misnomer—your client's career by slowing this trial down to next year?  Do you think judges are that sharp to the realities of their actions? 

DEGUERIN:  I don't think judges live in a cocoon. 

And I think they can see that what's happened here has already cost Tom DeLay immeasurably. 

MATTHEWS:  Sure.

DEGUERIN:  And he's got a tattoo that he's never going to get rid of. 

And he had to step down. 

But, in addition, you know, primary time is here.  March is primary time in Texas, and that's just right around the corner.  We hope that we can get this done long before that. 

MATTHEWS:  OK.  Please come back and let us know how the trial—it seems like that's a reasonable demand by you, to get a speedy trial under the Constitution.

Thank you, Dick DeGuerin.

DEGUERIN:  Thank you, Chris. 

MATTHEWS:  Who is counsel for Tom DeLay.

When we return, more on the indictment of Tom DeLay with syndicated columnist Molly Ivins and former Republican Congresswoman Susan Molinari. 

This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, the political concussion from Tom DeLay's indictment with syndicated columnist Molly Ivins and former U.S.  Congresswoman Susan Molinari.

HARDBALL returns after this. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

Molly Ivins is the syndicated columnist from down in Texas.  She is the author of “Who Let the Dogs In?”  And Susan Molinari is a former U.S.  congresswoman from New York. 

Let's go at it here.

Molly, why do Democrats hate Tom DeLay? 

MOLLY IVINS, SYNDICATED COLUMNIST:  Well...

(LAUGHTER)

IVINS:  Let me count the reasons.

MATTHEWS:  Well, you do.  I mean, you're not—you're only one of them that hate him.  What's this visceral contempt and anger against this guy?

(CROSSTALK)

IVINS:  He really does have—Tom DeLay just has that—it's irresistible for him to take that step too far. 

And he's just mean, politically mean, and then too far.  It's like calling the Environmental Protection Agency the gestapo.  It's the crack he made the other—just yesterday about how Ronnie Earle only comes to work when there's a press conference, which is ridiculous.  I mean, you just sit there...

(CROSSTALK)

MATTHEWS:  Well, why do you—why do you—why do you really, deep down, really are thrilled at this defeat by the guy, the fact that he's lost his leadership, the fact that he's facing—he is indicted, facing trial?  And, apparently, he's going to get mug-shotted. 

He is going to, God knows, go through the humiliation of arraignment and everything else.  Why does that give you a giggle? 

IVINS:  Yes.  Wait a minute.  You're making an assumption, Chris, that's absolutely not true. 

Now, you know, I keep trying to tell you all that, if liberals were the way you assume they were, of course, people would think they were disgusting.  I'm not sitting around giggling about this. 

MATTHEWS:  OK. 

IVINS:  I have known Tom DeLay for a long time.  No, I don't like him politically.  It's the same way I am about George Bush.  I have never criticized him personally. 

MATTHEWS:  Right. 

IVINS:  I just don't like his policies. 

Well, I not only don't like Tom DeLay's policies.  I don't like the way he plays politics.  You know as well as I do that, sometimes, it's real hard to tell the difference between playing hardball politics and operating with no moral compass whatsoever.  But you know what?  It's really not that... 

(CROSSTALK)

MATTHEWS:  So, the guy has no moral compass whatsoever, but you have no problem with him personally? 

(LAUGHTER)

IVINS:  Well, OK.  You know, all I'm saying is that I think that Tom has gone over the line of both legality and ethics repeatedly.  And every time it happens, he says, anybody who points it out is just a vicious, partisan person who's just after him because of partisan zealotry and it's all a conspiracy.  And if he really gets in trouble, he plays the Jesus card. 

MATTHEWS:  OK.  Molly, thank you.  Hold on there. 

Am I wrong that Democratic liberals hate Tom DeLay? 

SUSAN MOLINARI, REPUBLICAN STRATEGIST:  They do because he's an effective Republican conservative leader. 

MATTHEWS:  Any other reason?

(CROSSTALK)

MATTHEWS:  Like the one mentioned by Molly, that maybe he plays a little rough? 

MOLINARI:  Plays a little rough?  Against who?  Ronnie Earle, who, earlier this year spoke at a Democrat fund-raiser and talked about the particulars of a case that he was—that we didn't know at the time, but was attempting to prosecute? 

Does anybody have a problem with that, that he stood up and said, this is not just about Tom DeLay?  If it's not this Tom DeLay, it will be another one, just like the one bully who replaces another. 

This is a district attorney speaking at a Democrat fund-raiser about a case he's investigating?  I think Tom DeLay is on pretty good grounds to say that this is a partisan witch-hunt when that's the way the district attorney behaves. 

IVINS:  Excuse me.  May I interrupt? 

MOLINARI:  Sure. 

IVINS:  You really cannot make Ronnie Earle into some kind of rabid, zealous, overenthusiastic prosecutor of Republicans. 

MOLINARI:  No, just...

IVINS:  The man has indicted 15 politicians in his career, and 12 of them were Democrats. 

MOLINARI:  No, that's right.

IVINS:  That's four out of five.  If that's not good enough for you, ma'am, you just can't count really well. 

MOLINARI:  Well, you know what.  Actually, let me just quote “The Wall Street Journal,” because I didn't say...

(CROSSTALK)

IVINS:  Please don't quote “The Wall Street Journal,” because they were dead wrong on... 

(CROSSTALK)

MOLINARI:  Well, what they say is that there's a history of indicting political enemies, Republicans and Democrats.  And that clearly is the way he proceeds.

IVINS:  That's simply not true. 

MOLINARI:  Go ask Senator Kay Bailey Hutchison.

IVINS:  Ronnie Earle is not some rabid, angry, zealous person.  He has been DA here for 27 years. 

MOLINARI:  Why do you think...

IVINS:  For years, the Republicans never ran anyone against him. 

MOLINARI:  Six grand juries have been impaneled to try and indict Tom DeLay.

(CROSSTALK)

IVINS:  One reason this case has taken so long...

(CROSSTALK)

MATTHEWS:  We have got to come right back. 

IVINS:  All right. 

MATTHEWS:  I have got a commercial break.

Please, we'll resume this in just a minute.  Sorry.  We have to come right back with a commercial.

Thank you. 

(COMMERCIAL BREAK)

MATTHEWS:  We're back now with columnist Molly Ivins and former Republican Congresswoman Susan Molinari. 

Molly, do you think that Tom DeLay deserves a speedy trial by Christmas? 

IVINS:  Oh, I would love to see that happen. 

And let me explain that the reason this thing has dragged along so—taken so long so far—she said six grand juries—she is absolutely right—is because the lawyers on the other side have been dragging their feet.  Ronnie Earle wanted to wrap this case up spring a year ago. 

MATTHEWS:  So, you think both...

(CROSSTALK)

MATTHEWS:  You think Ronnie Earle will go with a fast trial?

IVINS:  If you will give me a chance, Chris, I will also point out to you that I think the conspiracy is a ridiculous charge.  And I have always have.

I'm telling you, I'm a civil libertarian.  Conspiracy is usually an ad-on charge.  And it's—as far as I am concerned, it is completely worthless.  Unless Ronnie Earle has a witness on—a personal witness on DeLay, then I don't think he even has a case. 

MATTHEWS:  You don't think he squeezed one of the other defendants? 

IVINS:  I think he may well have. 

MATTHEWS:  Yes. 

(CROSSTALK)

IVINS:  And he is already stung once.  He went after Kay Bailey Hutchison and missed badly. 

MATTHEWS:  Yes. 

IVINS:  He's not—not eager to take on anybody else unless he knows he's got a case.

MATTHEWS:  The next Supreme Court justice nominee, not chief, but associate justice.

MOLINARI:  Wait a minute. 

MATTHEWS:  I have got to—I want to chase one more issue. 

MOLINARI:  OK.

MATTHEWS:  Should the president go to the right or stay where he is with Roberts, try to fine-tune it again and get another big victory? 

MOLINARI:  Well, I think—well, I think people on the right are happy with Roberts.  I think he needs another big victory.

MATTHEWS:  So, that's fine-tuning.  He should try again? 

MOLINARI:  I think it's fine-tuning.  He should try it again. 

And, hopefully, as a mother of two daughters, it should be a woman. 

MATTHEWS:  Right. 

Molly?

IVINS:  I agree. 

MATTHEWS:  Why did he get 78 votes?  How did he do so well? 

IVINS:  Oh, Roberts.

MATTHEWS:  Yes. 

IVINS:  I think he is a fairly impressive individual, don't you? 

And I certainly agree with Susan.  Let's go for a woman.  Let's go for a mom with two kids. 

(LAUGHTER)

MATTHEWS:  I was impressed, weren't you, by people like Pat Leahy, the ranking Democrat on Judiciary.  These are real liberals, very civil libertarian, very pro-choice.  They went with him. 

MOLINARI:  Yes. 

IVINS:  They went with him, I think, especially because they think he is really intelligent and really well-educated. 

MATTHEWS:  You're great, Molly.

(CROSSTALK)

MATTHEWS:  Molly, I am sorry we had our tiff.  You are great, Molly.

IVINS:  All right. 

MATTHEWS:  You're great.  Thank you.

And I'm surprised always by the nuance of your opinions.

Anyway, thank you, Susan Molinari. 

Join us again tomorrow night at 5:00 and 7:00 Eastern for more

HARDBALL. 

Right now, it is time for “THE ABRAMS REPORT” with Dan.

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

END   

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