updated 10/4/2005 10:21:01 AM ET 2005-10-04T14:21:01

Guests: Mark Pryor, Tony Perkins, David Frum, Orrin Hatch, Nicolle Devenish

CHRIS MATTHEWS, HOST:  Why?  That‘s the $64,000 question.  Why did President Bush, committed to historic change of the Supreme Court, settle on an old friend?  And why are some conservative voices rising up against the pick?

Let‘s play HARDBALL.

Good evening.  And welcome to a roller-coaster of a day.  I‘m Chris Matthews.  Welcome to HARDBALL, a special report tonight. 

President Bush wants his own White House counsel and former personal lawyer Harriet Miers to replace Sandra Day O‘Connor as the next Supreme Court justice.  The pick of Miers, again, the president‘s longtime personal lawyer in Texas, has been tagged as cronyism.  Why does the president believe Harriet Miers is the best person to fill the vacancy? 

Nicolle Devenish is the White House communications director.  She joins us now from the White House lawn.

I guess that‘s the big question, a surprise pick.  But why? 


I think that the country has seen through this president that he places judicial philosophy ahead of everything else.  And I think that what we saw in the Roberts nomination and what we saw today in his nomination of Harriet Miers is what he places as the highest priority.  And that is the most qualified candidate and someone who shares his conservative judicial philosophy. 

MATTHEWS:  Does Harriet Miers believe in original intent?  In other words, go by what the founders meant they wrote the documents? 

DEVENISH:  Well, Chris, I can tell you that—that, in Harriet‘s current job—and you know this—as White House counsel, you are at the person who is at the president‘s right hand as he selects nominees for judgeships. 

And so, she‘s the person most intimately involved in the selection of judges.  And this president has a track record of appointing judges who are committed to strictly interpreting the Constitution and not making laws from the bench. 

MATTHEWS:  Is she like Scalia and Thomas? 

DEVENISH:  I think she‘s her own brand of judge. 

And I think that—you know, I have seen what you‘ve seen today, and I think some of these people are going to look back in 10, 15 years, and study the Miers court and the Miers decisions and be very proud of this president‘s selection today. 

MATTHEWS:  Well, we will go through the point by point of what the various people on the right are saying.  And I know you are very familiar with this cacophony coming out on certain points on the right, not all the right.


MATTHEWS:  By the way, a lot of people want to know this.  And maybe you don‘t know the answer.  Is Harriet Miers pro—pro-life? 

DEVENISH:  Well, you know, we don‘t have a litmus choice for any of our nominations and certainly not any of our judicial nominations. 

So, what the president was looking for and, frankly, what Harriet looks for when she works on this process of selecting judges, is someone who, as I said, strictly interprets the Constitution.  She‘s also someone whose qualifications speak volumes about what women—she‘s an inspiration to other women in the West Wing, that she‘s accomplished so much.  She has a 30-year career as a truly brilliant and inspired attorney. 

And, certainly, at the White House, she‘s a real leader.  She‘s someone whose steadiness and hard work sets the pace for all of us.  So, I think she‘s someone who, like Justice Roberts, will make all Americans proud. 

MATTHEWS:  Let‘s go to voices from the right.

Pat Buchanan wrote today: “Handed a once-in-a-generation opportunity to return the Supreme Court to constitutionalism, George W. Bush passed over a dozen of the finest jurists of his day to name his personal lawyer.  Bush capitulated to the diversity mongers, used a critical Supreme Court seat to reward a crony and revealed that he lacks the desire to engage the Senate in fierce combat to carry out his now suspect commitment to remake the court in the image of Scalia and Thomas.  In picking her, Bush ran from a fight.  The conservative movement has been had.”

That‘s Pat Buchanan. 

DEVENISH:  Again, the president has never misfired on making judicial nominations that not only make the country proud, but that prove very consistent with a conservative judicial philosophy. 

Now, I think this president has a track record, after nearly five years in office, of doing what he said he was going to do.  You know, we ran, and you covered the campaign, and I worked on the campaign—you know, we ran on a promise and we fulfilled that promises to appoint judges who strictly interpret the Constitution.  And that is what he has done in this choice.

MATTHEWS:  How does he know that this isn‘t a mole, that Harriet Miers isn‘t another David Souter, a guy who has no paper trail, seems like a conservative, but, once he or she gets on the court, they are like jackrabbits and they head off the left? 

DEVENISH:  Well, I think exactly what we have in this choice is someone that the president knows so well and who he understands her convictions so deeply that, again, I think that all of these frankly critics on either side will be very unsurprised, I think, at her steadiness and her consistency as someone who strictly interprets the Constitution. 

MATTHEWS:  But this is the hard part to figure out, Nicolle.  You just said the president knows her convictions in-depth.  How—does he know whether she‘s pro-choice or pro-life, if he knows her convictions? 

DEVENISH:  Well, I think there‘s a difference between understanding someone‘s philosophy and convictions. 

You know, I know your convictions as a journalist, but I don‘t know how you feel about individual issues.  And I think the same can be said...


MATTHEWS:  Well, that‘s always a tricky question for me anyway.  I like to surprise people.

Let‘s go to another conservative.  I will get out of this.

The editor of “The Weekly Standard” said—quote—“I‘m disappointed, depressed and demoralized.”  It sounds like he needs a pill.


MATTHEWS: “What does this say about the next three years of the Bush administration?”  I‘m quoting Bill Kristol, the editor of  “The Weekly Standard.”  “Surely, this is a pick from weakness.”

DEVENISH:  Well, I think he‘ll feel a lot better after watching Harriet Miers on the Supreme Court for a couple years.  I think that, again, she is going to prove to be not just a Supreme Court judge that we can all be proud of, but someone that, you know, our conservatives will see as deeply and wholly committed to strictly interpreting the Constitution, which is what I think people like Mr. Kristol are looking for. 

MATTHEWS:  Former White House speechwriter David Frum, I believe he was the author of the axis of evil speech.  He wrote—quote—today, “The Miers nomination, though, is an unforced error.”  That‘s like a baseball or football term—“an unforced error.  We are being asked by this president to take this appointment purely on trust.  And that is not a request conservatives can safely grant.  There have been just too many instances of seeming conservatives being sent to the high court, only to succumb to the prevailing vapors up there.  Given that record, it‘s simply reckless for any conservative president, especially one backed by a 55-seat Senate majority, to take a hazard on anyone other than a known quantity.” 

That‘s the last I got in my box here, Nicolle.  Is—what do you respond to that?  Is he taking a chance on Harriet Miers sticking to her conservative philosophy? 

DEVENISH:  Look, there is no risk in Harriet Miers betraying the deeply held and shared belief that we all have in judges that strictly interpret the Constitution. 

I think we have seen enough of what can go awry when we stray from that.  And Harriet Miers is going to be someone that all conservatives, that all of us, are deeply proud of and will study her opinions for many years as someone who strictly applied the law and did not legislate from the bench.


Last question.  Now, this will make news.  Senator Ted Kennedy of Massachusetts, who probably will not vote for this nomination, has asked your White House, you in particular, to release documents affecting all the relationships and conversations and memos and e-mails from Harriet Miers to the president or anyone else in the White House regarding judicial issues since she came to the White House. And he also wants the paper trail back to her days advising the governor of Texas, George W. Bush. 

Will she get—will he get those documents?

DEVENISH:  Well, you know as well as I do that there are few relationships in our society that are still held sacred.  One is between a priest and confessor.  One is between a lawyer and a client. 

And that‘s what Harriet has been.  She has been the president‘s counsel.  So, I think people on both sides of the aisle not only understand, but advocate for the protection of the attorney-client privilege. 

MATTHEWS:  So, no go? 

DEVENISH:  Well, I think this process will play out.  We are very pleased with the reception that—and it was well-deserved—reception, warm reception, on Capitol Hill that Harriet got today. 

And we look forward a very civilized process.  I think we all here in Washington did something that—that—that made people proud again of Washington and of business as usual...

MATTHEWS:  Right. 

DEVENISH:  and—in our ability to come together around someone who is clearly and supremely qualified.  And Harriet Miers is just that. 

MATTHEWS:  Were you scared to see the warm embrace that Harriet Miers, the president‘s nominee for the court, received today from Harry Reid, the senator from Nevada, the Democratic leader? 

DEVENISH:  You know, I wasn‘t, because I was aware, as the consultation process played out—and, you know, we have consulted with more than 80 senators, obviously, Democrats and Republicans.  And her name came up unsolicited on numerous occasions.  So, I was not surprised, but pleased nonetheless. 

MATTHEWS:  OK.  Thank you very much.

DEVENISH:  Thanks, Chris. 

MATTHEWS:  Nicolle Devenish, White House communications director.

Let‘s get reaction from Capitol Hill now from a big one.

Senator Orrin Hatch joins us now.  He sits on the Senate Judiciary Committee.  He was chairman for a long time.

Senator Hatch, this is a surprising reaction.  I thought the left would be going crazy.  A lot of voices on the right upset with this nomination. 

SEN. ORRIN HATCH ®, UTAH:  Well, there are some on both the far left and the far right.  So, I imagine we‘re—we are doing pretty well on this nomination. 

MATTHEWS:  Are you surprised at the virulence from some the

neoconservatives, they‘re called, people like Bill Kristol saying he‘s

disappointed, demoralized, whatever, all the kind of emotional anguish,

David Frum saying this is cronyism?  They‘re all using terms like cronyism

Pat Buchanan.

Do you think they are they just playing for attention, these conservatives, or do they really believe this? 

HATCH:  Well, I think they are disappointed because they would like to have some of the people that they would like to choose.

But, you know, they‘ll have to run for president if they want to make the choices.  And they don‘t know Harriet Miers as well as some of us do.  I have to say that I think she‘s an excellent choice.  This is a woman who has tremendous experience.  She‘s been a pioneer for women.  She broke through the glass ceiling down there in her law firm and of course rose to the top and became managing partner and president of the firm, and then, of course, has been president of the Dallas Bar Association, the Utah Bar—excuse me—the Texas Bar Association—got my own state in mind—and I think would have been president of the American Bar Association. 

This is a really qualified, terrific human being.  And I know her real well.  And I think—I think the conservatives will be pleased with her in the end. 

MATTHEWS:  What about the charge of cronyism? 

HATCH:  Well, look, the president wants to pick somebody that he knows very, very well, that he understands.  And he understands her philosophy.  And he‘s known here for only about 10 years.  But that‘s a pretty long time.  And she‘s been his counsel.  He has every confidence in her.  She‘s White House counsel today. 

And I just have to say that this is a woman who has the ability.  And she‘s been picked on her ability, not because she‘s just somebody he likes. 

MATTHEWS:  How do you read her opposition to the way that the ABA, the American Bar Association, came out with a pro-choice position?  She didn‘t like the process.  She wanted to have a vote by members.  What did you make of that?  Does that does that let you knew that she‘s pro-life or what? 

HATCH:  Well, you can be pro-choice and not want that. 

You don‘t—what‘s—what‘s wrong with the American Bar Association is, it was stooping to go into partisan politics.  The Bar Association is made up of people from all political persuasions.  And to get into some hot-button issue like abortion is just stupid. 

So, you could be—I knew pro-choice people who were very strongly against the Bar Association getting embroiled in that.  And I knew pro-life people who were strongly against—and strongly against that.  So, I don‘t think you can judge anything from that.  The fact is, is that she‘s—she‘s a terrific person.  She‘s a terrific lawyer.  She‘s earned the right to be nominated. 

And she‘s a terrific spokesperson for women, a terrific pioneer for women.  And I think women ought to be very pleased that she‘s been chosen, because the president could have chosen any number of—there were at least 15 people that I chatted with her about and with the other people at the White House about. 

MATTHEWS:  You know, the president won the 2000 election.  It was a tie, basically.  But he eked it out because of the belief that he had the right values and the other guy didn‘t.  And, certainly, Clinton didn‘t seem to have the right values at the time or maybe for all times. 

He won the reelection because he was decisive and John Kerry didn‘t look very decisive.  Do you think he‘s been both decisive and shown the right values in this decision, the president, in picking Harriet Miers? 

HATCH:  Well, he has been decisive.  There‘s no question about that, because he had a plethora of really good people to choose from. 

That‘s what may be irritating some of the conservatives, because there were some real fair-haired people that the conservatives just loved, you know, but would have been very problematic up here on Capitol Hill at this particular time.  Harriet Miers may be problematic, but I don‘t see any reason for it, nor do I see any reason why Ted Kennedy should be demanding all of these confidential and privileged documents. 

That‘s a game that‘s played too often up here.  It‘s wrong.  And my good friend Ted, you know, he ought to quit playing that game.  To be honest with you...

MATTHEWS:  Well, why does he—why does he keep asking for documents which are confidential, which, by definition, are lawyer-client? 

HATCH:  Well, because that justifies a vote against a person if he doesn‘t like a person, or if he has any questions about the person, any—

I don‘t think it justifies a vote.  But, in his eyes, it may. 

And I think they just use—like the phony request to get the confidential papers from the solicitor general‘s office in the case of John Roberts, I mean, that‘s just ridiculous.  And they know it.  And—but they could hide behind that, I guess.  And that‘s the request way the game is being played by some of them.  But it‘s ridiculous.  It‘s stupid. 

MATTHEWS:  Would it be stupid of the president to give those papers over? 

HATCH:  I‘d say. 


HATCH:  I‘d say.

Now, the reason some of these papers were given over in the case of John Roberts is, they were in a public library.  They were in various libraries.  And they were open to the public, some of them.  But, you know, confidential memoranda of a sitting president?  Are you kidding? 


HATCH:  Nobody in his right mind would want to do that.  Nobody in her right mind would want to do that.


MATTHEWS:  A lot of people who voted for the president, who vote for you all the time, are pro-life.  A lot of people are.  Can you go home to Utah and tell the people who are concerned about that issue primarily that this woman is OK? 

HATCH:  I think I can.  However, I don‘t know what her—I don‘t know what John Roberts‘ position is on abortion. 

We don‘t ask those questions.  All I can say is that I want people who really will be a credit to the court, a credit to the judicial system, who will obey the law, abide by the Constitution, and interpret it the way it should be interpreted, and not make law by acting as super-legislators from the bench.  I think, in all of those ways, she qualifies. 

Now, my personal belief is, is that she‘s probably a good person who conservatives can be very pleased with.  And that‘s been my experience with her. 

MATTHEWS:  It‘s great having you on, Senator. 

HATCH:  Nice to see you.

MATTHEWS:  Thank you very much, Senator Orrin Hatch of Utah, member of the Senate Judiciary Committee.

When we return, we are going to hear what Democrats are saying about the nomination of Harriet Miers.  Interesting.  They have been very quiet.  Let‘s see what they have to say.  Will there be a filibuster?  There could be 40-some votes.  There won‘t be even a vote if they win.  We will be joined by one of the so-called gang of 14, Senator Mark Pryor of Arkansas.  Let‘s see if he says this is an extraordinary nomination that would justify a filibuster. 

You‘re watching a HARDBALL special report, only on MSNBC.


MATTHEWS:  Coming up, will Democrats fight to block a confirmation vote for Supreme Court nominee Harriet Miers? 

HARDBALL returns after this.



SEN. HARRY REID (D-NV), MINORITY LEADER:  It‘s not for me to determine what paper trail is here or isn‘t here.  I just understand the broad outline of this woman.  And the broad outline looks really good to me. 


MATTHEWS:  Broad outline look good.  That‘s the head of the Democrats speaking.

Welcome back to this HARDBALL special report.  That‘s the Senate minority leader himself, Harry Reid, with Supreme Court nominee Harriet Miers earlier today. 

So, how will the Democrats overall handle the president‘s latest pick for the high court?   

Arkansas Senator Mark Pryor is one of the Democrats who voted yes on the confirmation of John Roberts.


SEN. MARK PRYOR (D), ARKANSAS:  Thank you, Chris. 

MATTHEWS:  Senator Pryor, you a fascinating person to watch in this, because you are one of the people in the political center who said there would not be a filibuster, there would an up-or-down vote, if we could avoid having the president send up an extraordinarily bad nominee.   Does she fit that bill or is she considered ordinary enough to give her a vote? 

PRYOR:  Well, it‘s too early to know right not, Chris.  But I will say this.  From what little I know about her, there does not seem to be extraordinary circumstances around this nomination.  So, I would say so far, so good.  But it‘s very, very early.  I‘m kind of like you and the viewers out there.  I just don‘t know a whole lot about her yet. 

MATTHEWS:  Well, I‘m stunned that the president—really, through this, he has been so smart at pulling a rabbit out of the hat with regard to John Roberts, who did so well up there in the Senate with you and the other senators.  Do you have a sense that he‘s done it again, because I noticed that a lot of Democratic more liberal members, even, and the pressure groups are pretty quiet today?

PRYOR:  Well, we don‘t know yet. 

This could be a very smart pick for the president.  It is just too early to know.  I will say this, though, that I have noticed that some people on one side of the aisle are all for him—you know, they—I mean, all for her.  They thinks she‘s great, best thing since sliced bread.  Some liberal groups maybe aren‘t so sure.  But I think that we all need to reserve judgment and we as senators need to execute our independent judgment on this nominee. 

MATTHEWS:  Suppose he just picked any 60-year-old woman who had no paper trail, had never involved herself in judicial—just somebody brand X, and all you know about is, she‘s a 60-year-old woman and she worked for the president in the White House, and she‘s been nominated for the Supreme Court.  Is that a target you can‘t hit, just by nature—by the nature of it? 

PRYOR:  No, I don‘t really think so. 

In fact, I think, in some ways, this is good.  We want some diversity on the court.  And part of that diversity is, we want people who have never been judges before.  Judges tend to get in their own little bubble.  They tend to live in their world, their own ivory tower, so to speak.  And she‘s been a lawyer out there for years and years and years down in Dallas who has practiced law.  Apparently, she ran a big law firm.  She had all kinds of different clients down there.  She just brings in a different perspective. 

I would say that‘s not all bad.  But, again, let‘s wait and see what

her credentials are.  Let‘s see what her judicial temperament is.  And the

the—one of the things I really look for as well is whether she can be fair and impartial.  And that‘s a big unknown right now. 

MATTHEWS:  Well, let me ask you about the big question.  Everybody says you have a right to know her judicial philosophy.  What happens when Joe Biden starts pounding her on what she means by the 14th Amendment, the liberty clause?  What did she think of the ‘54 Brown case on separate but equal?  What did she think of the constitutionality of the civil rights vote of ‘64?  What did think about all these court decisions?  And then she says, well, I wasn‘t there and I‘m not really a student of the Constitution.

What is she going to say? 

PRYOR:  Well, you know, that‘s—that‘s part what we need to be looking for here.  In fact, when I look at the—this nomination process and what is going to happen in Judiciary Committee, I would say two words come to my mind. 

One is rigorous.  I want it to be very rigorous.  I want them to ask very hard questions.  I want them to dig deep and probe hard into her background, into her philosophy.  We need to know all we can about how we - - how she understands the Constitution. 

But the second word I think of is fair.  I want it to be fair.  I think there maybe are some areas you shouldn‘t get into or things that she probably won‘t answer.  And that‘s OK in my mind.  I just want it to be rigorous, but also fair. 

MATTHEWS:  You represent a state that‘s probably politically centrist, and maybe it swings a little bit left and right, but it‘s somewhere in the middle.  Am I right? 

PRYOR:  I think that‘s fair to say about Arkansas, yes. 

MATTHEWS:  Do—do you feel a responsibility to your people in Arkansas to—to give a fair hearing to somebody who may be to your—to your right, even if you don‘t quite agree with them, because—out of the respect for the president‘s decision? 

PRYOR:  I do feel that responsibility. 

In fact, I think that it‘s important for me as a senator who represents Arkansas to use my independent judgment and my discretion on this nominee.  Let me say this.  I‘m going to have anxiety about this nomination, just like did I with Roberts, as I will with any Supreme Court nomination, because these nominations are extremely important, very important for the development of American law and also very important for American society. 

So, I‘m going to have anxiety.  I approach this with very sober judgment.  And I look forward to getting into her background, getting into her resume.  And I look forward to delving into the details here.  But I am going to have some anxiety about this and all other nominations to the Supreme Court. 

MATTHEWS:  Well, I am going to give you some more anxiety, Senator Pryor.  I am going to come back and talk to you about these pressure groups, the Nan Aron, the Ralph Neas crowd, the ones that—Tony Roberts crowd—rather, not Tony Roberts—he‘s the Broadway guy—the Tony Perkins crowd.  I want to know what it‘s like to be a United States senator in the kind of crossfire you‘re in when both left and right come whacking at you, trying to make you do what they want you to do.

We will be right back with a middle-of-the-road senator from Arkansas, Mark Pryor.

You‘re watching a HARDBALL special report on MSNBC.


MATTHEWS:  We are back with Senator Mark Pryor, Democrat of Arkansas.  Senator Pryor is one of the gang of 14 that are trying to avoid a filibuster. 

Senator, what is it‘s like to be in the middle and be whacked left and right by the pressure groups? 

PRYOR:  Well, I sort of live in that world every day. 

And the people in Arkansas, I think they expect me to represent them and not represent these groups here in Washington.  And that‘s the approach I take.  So, I certainly take some heat on both sides on various issues.  But, down at the core, I represent the people of the state of Arkansas. 

MATTHEWS:  Do they stir—do the pressure groups left and right stir up individual letters from your friends in the state? 

PRYOR:  We get some of that.  We get some phone banking.  We get some mass or blanket e-mails.  I mean, sure, we get some of that.

MATTHEWS:  How about individual friends of yours?  Do they find them and say, look, I backed you in that first race, I‘m counting on you, that kind of stuff?

PRYOR:  Oh, a little bit of that, not too much of that.  But sometimes we will get that. 

And let me say this.  From these pressure groups, I have a deep respect for their convictions.  I think a lot of them are very, very sincere.  But, also, I think we need to be understand.  We need to be honest about this, that many of these pressure groups, left and right, they will use a nomination like this as a fund-raising tool. 


PRYOR:  And we just have to acknowledge that.  That‘s the way it is.

And, like I said, at the end of the day, I represent the people in Arkansas.  And I know sometimes these pressure groups, not all of them—I don‘t want to name any names, but some of them will use very misleading information to try to motivate voters to call me.  And we just understand that that is part of the way politics is played today. 

MATTHEWS:  I love hearing the real reality of it. 

Thank you very much, Senator Mark Pryor of Arkansas.

Up next, will the battle over Harriet Miers come from the left or the right?  It‘s coming right now from the right.

You‘re watching a HARDBALL special report, only on MSNBC.



MATTHEWS:  Welcome back to this HARDBALL special report on the nomination today of Harriet Miers to the Supreme Court. 

Joining me now is former White House speechwriter David Frum, president of the Family Research Council, Tony Perkins, and HARDBALL political analyst Bob Shrum.

All three of you, I want you in order—looking—I‘m looking at Frum first, and then you, Tony, then Bob Shrum.

How would you describe the philosophy, based upon—you know a lot of this woman.  What is it?  Is she a conservative?  How—describe it.

DAVID FRUM, FORMER SPEECHWRITER FOR PRESIDENT BUSH:  Her personal philosophy is, I‘m sure, conservative.  But as to her legal and judicial philosophy, I don‘t think anyone can answer that question.  I don‘t think the president can answer the question.  I‘m not sure Harriet Miers could answer the question. 

MATTHEWS:  Could she be a Souter? 

FRUM:  She could be anything.  She could be anything.  She could be the second coming of Antonin Scalia.

We just don‘t know.  And the question is, should the president‘s conservative supporters have to take this decision with so little information, when there are so many outstanding people abundantly well qualified who could pass the Senate, about whom we do know where they stand?


It‘s a lottery, in other words? 

FRUM:  It‘s...


MATTHEWS:  To refer to her previous occupation. 



MATTHEWS:  Let me ask you, let me ask you, Mr.—Mr. Perkins, do you trust her to be a conservative? 

TONY PERKINS, PRESIDENT, FAMILY RESEARCH COUNCIL:  I trust the president, that he‘s made consistent nominations of candidates who have a solid judicial philosophy of restraint. 

Having said that, there is not enough evidence to determine exactly what her judicial philosophy is.  That‘s why I think these hearings are absolutely critical in determining that. 

MATTHEWS:  Do you think the hearings will tell you something that the president has not been able the ascertain in all these years of working with her? 

PERKINS:  Well, the president may know it, but it‘s not been made known to the American public.  And I think it‘s important that we know it.  And I think the hearings will hopefully give us a... 


MATTHEWS:  Do you believe she will take the conservative side in trying to change the interpretation of the Constitution about the right of abortion? 

PERKINS:  Well, Chris, I think it goes back to one of judicial activism or judicial restraint, abortion simply being the symbolic issue there.  That is a...


MATTHEWS:  Symbolic?  There are millions who went out and voted for President Bush because they want to see these abortion stopped. 

PERKINS:  No.  No.  It‘s symbolic of judicial activism.  That‘s the one everybody turns to, but it reflects a much deeper problem within the judiciary.  And that is of judicial activism.  Is it important?  Absolutely important to the president supporters.

MATTHEWS:  Bob Shrum, can you read the cut of this woman‘s jib yet? 

BOB SHRUM, HARDBALL POLITICAL ANALYST:  Well, look, there was a blood lust, I think, on the part of the right for a cultural war in the Senate. 

I think the president is more interested in getting a cultural warrior on the court.  He knows what she thinks.  He has sat with her over the last several years picking justices.  As Nicolle Devenish said earlier on this show, they have had long discussions about this, the kinds of discussions you are actually not supposed to having, according to the Bush White House, when are you picking a Supreme Court nominee. 

And I—I never thought I would say this, but agree with TONY PERKINS.  The president knows it.  Now the Senate has a right to know it and the American people have a right to know it. 

MATTHEWS:  Do you think we will know it at the end of two or three weeks of hearings, David? 


MATTHEWS:  Do you think we will know in two or three weeks of hearings from now?


PERKINS:  I think we will have a good understanding. 

MATTHEWS:  Do you think we will know, Bob Shrum, after two or three weeks of hearings on national television?  Will we know if this woman is a pro-life conservative or not? 


SHRUM:  I think they‘ll stonewall that question.  I think that we‘ll know a lot more about the Texas lottery than we do today. 


MATTHEWS:  That is so sarcastic, Shrum.  That is so sarcastic.  You‘re making fun of her, as if she was head of the Arabian Horse Association or something.


SHRUM:  No.  Look, let me make it clear. 

I think this woman is clearly a very qualified lawyer.  But she‘s a constitutional cipher. 


SHRUM:  It‘s a good thing they have young clerks on the Supreme Court to write opinions if she gets confirmed. 

MATTHEWS:  OK, let‘s ask that question.  Let‘s ask that question. 

Tony Perkins, you watched the hearings.  I did.  I watched a lot of Joe Biden going at Bob—about—going at John Roberts, saying, now, where are you on the liberty clause of the 14th Amendment?  And what did you think about its use during these various cases?  And here is a woman who is going to say time after time, well, I‘m not a student of constitutional law.  I really wasn‘t there.  I‘m not a judge.  I really have to have on open mind on that.

How—how about if she says that 50 times on 50 different landmark decisions?  Where will we be? 

PERKINS:  I think anyone that follows John Roberts is going to have a difficult time.  He raised the bar.  You watched him.  I watched him.

MATTHEWS:  Sure.  My point...

PERKINS:  He was outstanding. 

MATTHEWS:  He knew every point of constitutional law.

PERKINS:  Without a single note.   I think she‘s going to have a difficult time following...


MATTHEWS:  Can she say, I don‘t know? 

PERKINS:  I think she can do that to some degree.

I think, if I was her, I would be studying John Roberts‘ responses to the questions...


MATTHEWS:  And echoing them? 

PERKINS:  Absolutely. 

MATTHEWS:  Is that what Thomas does with Scalia?



MATTHEWS:  David Frum, you think she‘s a conservative. 


MATTHEWS:  Do you think that she‘s a conservative in the way that she would not be a reed shaken by the wind, as they say in the Bible?  Will she stick to her principles?  If you‘re a conservative, would you vote for her on the cultural issues? 

FRUM:  Vote for her for what?  Would I vote for her for mayor of Dallas?  Yes.  Would I vote—would I support her if she were nominated for attorney general?  Sure. 

But I think she truly has not thought about a lot of these questions in the way—in the way that senators are entitled to expect a judge has. 

MATTHEWS:  Right. 

FRUM:  Look, the conservative movement has invested a lot of effort finding and promoting brilliant minds with excellent academic qualifications, putting them on courts.

People have sacrificed a lot for this to prepare for the day when there was a conservative president and a conservative Senate, so they can say, look, we have got you 18, 24 people, men, women, black, white Hispanic.  Choose one of these.  They are ready for you. 


MATTHEWS:  It was time to go for the fences, hit a home run, and he bunted. 

FRUM:  He didn‘t even have to make—he didn‘t even have to make such a dramatic gesture.  There were a lot of excellent candidates who would easily have passed the Senate and not just with 55 Republican votes, but would have picked up 10 or 12 Democratic votes, too. 

MATTHEWS:  OK.  You blogged this morning, David, that was an unforced error.  do you stick with that?

FRUM:  I stick with that.  I don‘t think—the president did not have to do this.  The idea that he was somehow in some kind of political trouble...


FRUM:  ... that required him to pick a stealth candidate...


MATTHEWS:  What‘s the buzz at the White House about your—did you get some heat today?  Or not heat.  Did anybody buzz about you today? 

FRUM:  Oh, people have different views...


FRUM:  It‘s a free society.  I have a right to gripe and they have a right to complain about what I write. 


MATTHEWS:  NO, let me just run through this, run through this. 

Some people—not all the cultural the right, but definitely on the right politically, yourself, Buchanan, Laura Ingraham this morning on a radio program, Bill Kristol, the editor of “The Weekly Standard,” a lot of disparate kind of—you and—are closer, you and Kristol, but a lot of different kinds of—and Laura Ingraham is closer to you guys.

But what is—what is the story here?  What is the message of the opposition?  Is there any pattern to the opposition? 

FRUM:  I think people who care a lot...


MATTHEWS:  About the mental stuff, the intellectual gravity of this.


FRUM:  No, people who want to make sure that the court changes. 

The real thing—I think the thing that those of us who have been               nervous about this nomination are nervous about is, the president has an opportunity to change the court.  Roberts confirmed the court.  This is the decision that will change it.  We want to see the court change.  And we are worried about not just the intellect, but the courage and character of the person who will occupy that pivotal.... 


MATTHEWS:  Let me go to Tony.

Every time we pick up “The New York Times” after a big vote—and forget the ideology, “The New York Times.”  In the news pages, they do a wonderful job of showing the nine judges on the Supreme Court.  And they show the pattern of how they vote.  And, oftentimes, it was Rehnquist, Scalia and Thomas on the right.  And the swing votes would be O‘Connor and Kennedy in the middle.  And then you would have the liberals, right?

Do you think she will be one of those three or four on the right? 

PERKINS:  I don‘t know. 

I mean, what we were hoping for was someone that we—we wouldn‘t even have to guess, that it would be very clear-cut. 

MATTHEWS:  A Luttig?

PERKINS:  Well, we just don‘t know.  I mean, she could be.  I don‘t know. 

We hope that we will have a better understanding through the hearings, but I would agree with David.  A lot is at stake in this.  People had great expectations.  We don‘t know if those expectations will be met or they will be missed. 

MATTHEWS:  Will she be able to say, as John Roberts did, I‘m not a ideologue, having spent all her commitment, all these years of commitment, to the Bush administration and policies?  “I‘m not an ideologue,” can she say that?  

PERKINS:  I think she probably can.  If you look at—there is no—there is no track record of where she‘s made speeches or statements or writings. 


MATTHEWS:  That‘s what Specter is looking for.

PERKINS:  It‘s not there.

MATTHEWS:  OK.  Let me go to Bob Shrum.

Do you think, Bob, that there‘s any chance she‘ll be a Souter, someone who departs from the authorship, in other words, like Felix Frankfurter became a conservative despite his Roosevelt lineage, or Earl Warren became a liberal, despite the Eisenhower selection?  Do you think there might be a situation like that, or Byron White, who became much more conservative than the Kennedys would have thought? 

SHRUM:  Well, it‘s—I think there‘s a very small chance. 

I think what we‘re hearing here is a lot of right-wing distrust of the president on this particular issue.  And it goes back to his father appointing David Souter.  As I said earlier, I think Bush knows what he‘s getting.  And let me tell you, if she turns out to be David Souter or another David Souter, it‘s because what‘s that Bush wants. 

It will mean that Bush and Rove and the Republican establishment want the social issues, but they don‘t want Roe v. Wade and decisions like that overturned, because they would pay a very heavy political price in the next election. 

MATTHEWS:  Do you think they have thought through the fact that they‘re lucky to have a Supreme Court protecting them from the abortion issue?

SHRUM:  I—listen, I think it‘s quite possible that Bush Sr. knew exactly what he was doing when he appointed David Souter.  I think this president...


MATTHEWS:  You are vicious.  Shrum, you are vicious.  You are assassinating the guy in the Republican Party by saying that.  You‘re saying he‘s a closet liberal himself. 


SHRUM:  No.  I think George Bush had to run for reelection in 1992. 

And he was worried about this.  I don‘t know.


MATTHEWS:  You are laughing, Bob.  You are laughing. 


MATTHEWS:  I can see the smile.

SHRUM:  Chris, I don‘t know what he knew. 

I think this president is much more ideological.  He sat with Harriet Miers for two years.


SHRUM:  He knows exactly what she thinks.  And I agree with Tony.  We ought to tell the Senate what she thinks and we ought to tell the country what she thinks. 

MATTHEWS:  I think a lot of what the president is dealing with right now, the slow reaction to Katrina, he‘s still trying to work down, the war situation, which gets more troubling all the time.  The rising price of gases and, more importantly, heating oil are scaring the hell out of the president and scaring his conservative allies.  And they have decided it‘s a time to pounce and shake them up and say, don‘t go wobbly, George. 

Anyway, we will be back with David Frum, Tony Perkins and Bob Shrum.

More on the debate about the Harriet nomination, go to Hardblogger at Hardblogger.MSNBC.com. 

When we return, what‘s behind President Bush‘s decision to nominee Harriet Miers to the Supreme Court?  NBC‘s Andrea Mitchell is coming here.  I‘m sorry.  “The National Review”‘s Byron York will be here.


MATTHEWS:  Still ahead, President Bush selects a close confidant, White House counsel Harriet Miers, for the Supreme Court.  But is Miers too close the president for Senate Democrats?

HARDBALL returns after this.


MATTHEWS:  Welcome back to this HARDBALL special report.  We‘re joined now by NBC chief foreign affairs correspondent—actually, Andrea has covered everything. 


MATTHEWS:  Andrea Mitchell, who is the author of the new book “Talking Back to Presidents, Dictators, and Assorted Scoundrels.”

And “The National Review”‘s White House correspondent, Byron York, another great young writer. 

Anyway, thank you,.

And you are.  You are great.  And you are so smart. 


MATTHEWS:  I want to ask you this both.

And I will start with Andrea.  Totally nonpartisan view.

Do you know this woman? 

ANDREA MITCHELL, NBC CHIEF FOREIGN AFFAIRS CORRESPONDENT:  Only met briefly.  No.  I don‘t think anyone knows this woman. 

MATTHEWS:  What is her rep sheet, her rap sheet?  What do people say about her? 

MITCHELL:  Smart, process oriented, a detail person, very close to the president, loyal.  I mean, she is the person who was retained to vet the whole National Guard issue.  And that‘s...


MATTHEWS:  But is she like—there‘s two kinds of Washingtonians. 

There is the deeply committed ideologues.  We have all worked with them.  And there are people like Gergen, and some people like my—people—I was going to say myself.  In fact, I will.  Hard to define.  Hard to figure.  We like the action.  We like the causes.  We like the issues, but we are not simply ideological. 

You think she fits in the category of a person who just likes Bush generally as a family person she likes and generally is a Republican, but is not an ideologue? 

MITCHELL:  I think she‘s a Bush-ologue.

MATTHEWS:  That makes sense.

MITCHELL:  I think she is a Bush person.

MATTHEWS:  I understand that.

MITCHELL:  Loyal to him, and she would not be placed on this court if he did not think the way she would vote on this court the way he would like her to. 

MATTHEWS:  So, she won‘t go—she won‘t go left on him, he doesn‘t believe?

MITCHELL:  Absolutely.  She is not a David Souter.

MATTHEWS:  And he looked into her eyes? 

MITCHELL:  He looked into her eyes, saw her soul, like...


MATTHEWS:  Do you buy that?  Do you buy that you can do that, that a president or—I don‘t care how good a politician the president is.  Can he look in somebody‘s eyes and predict 10 years from now or five years from now whether they‘ll go along and go native in Washington, become a liberal? 


Absolutely not. 

She‘s extremely loyal to President Bush.  She has been in his White House.

MATTHEWS:  Will she remain so?

YORK:  But, if she‘s confirmed, she answers to no one.  And that‘s what—conservatives just hate this nomination.  They really, really hate it.


YORK:  Because, A, they don‘t know where she stands on these things.  And, B, they think there are a number of really stellar picks, like Michael McConnell or Michael Luttig, who could have been picked, who weren‘t. 


MATTHEWS:  Would they have made it, though?

YORK:  Today, Dick Cheney was on Rush Limbaugh‘s show today.  And he said, oh, just trust us on this.  In 10 years, you‘re going to say she was really great.

And Rush Limbaugh said, why do we have to wait 10 years?  There are people we could have, we could have chosen that we know now they would be really good.  Conservatives are not happy about this...


MATTHEWS:  Was Cheney part of this decision or was he cut out of it? 

YORK:  I think he was basically just defending the White House today.


MATTHEWS:  Was he part of this decision?

YORK:  I don‘t think he was a big part of the decision, no. 

MATTHEWS:  Do you know?

MITCHELL:  Well, I don‘t know.

But I would think that—that the real criticism of her is mediocrity.  What people will say is that this—this nominee does not have a distinguished career, not necessarily as a judge, because even Democrats were arguing they—you know, they are the ones who first suggested that this come—this new nominee come from the larger world. 

MATTHEWS:  So, you don‘t go with the...


MATTHEWS:  ... theory that we ought to have a few mediocre people on the court to represent most of us, who are mediocre? 


MITCHELL:  She can be a lawyer.  She can be a distinguished lawyer, a national lawyer.  But she doesn‘t have that record that makes her very special.  But there is a precedent for this, Abe Fortas, although he taught constitutional law.

MATTHEWS:  Is she pro-life?  The president ran as a pro-lifer.  He got reelected as a pro-lifer, values and decisiveness.  I will go over this again.  Don‘t the people that supported him have a right to get what they paid for and worked for? 

YORK:  Well...

MATTHEWS:  Is she pro-life? 

YORK:  They do.  First of all, we don‘t know.  And we are not going to find out.  They‘re going to try to ask her that a million ways.  And she‘s going to follow the Roberts precedent.


MATTHEWS:  Well, that‘s so hideously stupid, because, look, anybody who pays any attention to politics—and we have all been to parties late at night or in the afternoon or having lunch with somebody or in the hallway.  Everybody talks about abortion rights, man or woman, at some point if you are involved in politics. 


MITCHELL:  Clarence Thomas said that he had never discussed it.

MATTHEWS:  I know.  But nobody believed that.


MATTHEWS:  Do you think that she‘s never voiced an opinion of whether the Constitution permits a woman to have a right to an abortion or not?  As a lawyer, as head of the Bar Association in Texas, she‘s never told anybody what she thinks the Constitution says? 

YORK:  Perhaps she has, but, you know, the White House got a huge boost the other day when none other than Justice Ginsburg said that she felt the way that Roberts had handled a lot of the questions was the proper way.  The lesson of the Roberts hearing is, don‘t answer.

MATTHEWS:  Well, what about when the president asks her?

YORK:  I think the president would say that he did not ask her this.


MITCHELL:  The president knows.

YORK:  Yes. 

MITCHELL:  This is a woman who actually argued that the ABA should not take a position in favor of abortion. 

MATTHEWS:  You‘re staying, Andrea, because we are going to talk about your hot knew book, which is up on the best-seller list. 

And I have got to dispense with you a in second, so I‘m going to ask you the question.


MATTHEWS:  You are a conservative writer.  You‘re a straight writer as well.  Give me analysis here.  Will the conservatives in the Republican caucus, the 55 senators who are the majority in the United States Senate, will they stop her nomination to become confirmed? 

YORK:  I think not. 

Ask them today, as I did.  They say they are dispirited.  They are not happy about it.  But they will certainly support her in the end. 

MATTHEWS:  Because they like the president.

YORK:  Because they like the president.  And there is not anything disqualifying about her. 

MATTHEWS:  So, he may have threaded the needle again?

YORK:  Perhaps.

MATTHEWS:  Thanks for coming.  Byron, you‘re always welcome.  Thank you. 

Andrea Mitchell, we are going to come back and talk about some of those crazy things that happened at the Republican Convention this summer, and you were sitting next to me when that guy jumped over the fence.  We got some of these pictures. 

Her book is “Talking Back.”  It‘s got some great pictures, picture words in it. 

We will be back with HARDBALL after this.


MATTHEWS:  This is great. 

We‘re back with NBC‘s chief foreign affairs correspondent, Andrea, Mitchell who is the author of the book “Talking Back to Presidents, Dictators, and Assorted Scoundrels.”

Andrea, you were sitting to my left, I believe, when Zell Miller—we were out there, one of the great moments in television, it‘s been said, out there in Herald Square in New York back in 2004 at the Republican Convention.  You write about it in your book.  You‘re the first person to write about it with authority.

MITCHELL:  Well, it was unbelievable, because I was sitting next to you.  And the crowd was screaming.  And he thought they were screaming at him.  And I‘m trying to shush them up and stay out of the camera angle, of course.


MITCHELL:  So, I‘m quieting the crowd down.  And you were just fighting back with—you were talking back.

MATTHEWS:  Oh, no.  I was calm.  I was there saying, let him talk, you know?


MATTHEWS:  ... rare moments.

MITCHELL:  It was such a great moment. 

But the more the crowd shouted, the angrier he got at you.  It was unbelievable.


Well, we just got new information coming in that a Texas grand jury has indicted another one, another indictment of Tom DeLay, the—just recently the majority leader of the House of Representatives, for money laundering.

MITCHELL:  Well, look, DeLay—no matter how this indictment goes, DeLay can say he‘s working from behind the scenes.  But you can see, from just talking to his—his Republican colleagues, as we have all seen, they are running away from him. 

MATTHEWS:  You know, this question of—you have been covering presidents.  I have got to get back to your book and your history, because it‘s fascinating.  You have covered a lot of presidents, young lady. 

MITCHELL:  Five presidents. 

MATTHEWS:  Who‘s your favorite to cover? 

MITCHELL:  Ronald Reagan. 


MITCHELL:  He‘s a television president.  He loved—the first television president.  He loved the cameras.  He played to the cameras.  He was fun, and the Cold War, arms control. 

MATTHEWS:  He was big time.


MITCHELL:  Big stuff. 

MATTHEWS:  And here‘s another picture.  Let‘s take at another clip from that glorious day you spent with me, that week up in New York at the Herald Square. 



MATTHEWS:  Jim Jeffords of Vermont switched parties after getting elected.

SEN. ZELL MILLER (D), GEORGIA:  If you‘re going to ask a question...

MATTHEWS:  Well, it‘s a tough question.  It takes a few words.

MILLER:  Get out of my face.


MILLER:  If you are going to ask me a question, step back and let me answer.


MATTHEWS:  Senator, please.

MILLER:  You know, I wish we...


MILLER:  I wish we lived in the day where you could challenge a person to a duel.


MILLER:  Now, that would be pretty good.


MATTHEWS:  What did you think when you heard that? 

MITCHELL:  Well, I...

MATTHEWS:  You wrote about it well in here. 

MITCHELL:  Well, I was afraid he was going to come right on over. 

You know, I was also thinking about the change in the way we have covered politics over the years.  I mean, cable is different, the live audience, the—the connection to the people.  And we really had something going there.  I mean, it was unbelievable. 

MATTHEWS:  Isn‘t there something great?  I mean, you pointed out in the book about taking a show like this.  I wish we had a bigger budget sometimes, well, all the time—but taking it out to a crowd, there‘s nothing—I don‘t care what the ratings were.  Sometimes, they weren‘t as great as you thought.

But I got to tell you something.  It‘s dynamite to sit in—around with 500 or 1,000 college kids, excited kids, talking politics and their country‘s future.  There‘s nothing like it. 

MITCHELL:  And that brings it absolutely to—to—it brings it home to the American viewer.

And it‘s exactly what we do more and more of these days.  It does—it has, also, exacerbated some of the tensions.


MITCHELL:  It‘s made politics more contentious.  And I talk about the interaction between television, between journalism and politics.  And...


MATTHEWS:  We have got room for both.  I always say, we have got room for Brian Williams, room for this.  It‘s a different way of doing it, but they both help each other. 

Anyway, thank you, Andrea Mitchell.  I highly recommend this book.  In fact, we have selected a chapter that you can check out.  Go to our Web site, HARDBALL.MSNBC.com. 

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


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


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