updated 10/5/2005 2:54:33 PM ET 2005-10-05T18:54:33

Guest: Noel Francisco, E.J. Dionne, Kate O‘Beirne, Richard Durbin, George Allen, Ben Ginsberg

CHRIS MATTHEWS, HOST:  Trouble in River City.  Will an angry right-wing insurgency demolish Bush‘s pick for the Supreme Court? 

Let‘s play HARDBALL. 

Good evening.  I‘m Chris Matthews.

Land mines explode on Harriet Miers‘ road to the Supreme Court.  But the president insists, she is the best possible nominee and that, once on the bench, she will not change. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I know her well enough to be able to say that she‘s not going to change; that 20 years from now she‘ll be the same person, with the same philosophy that she is today.  She‘ll have more experience, she‘ll have been a judge, but nevertheless, her philosophy won‘t change. 

(END VIDEO CLIP)

MATTHEWS:  But a lot of conservatives don‘t know Miers or don‘t like what they are hearing about her. 

Here is Pat Buchanan going at it with veteran Bush counsel Ben Ginsberg.

(BEGIN VIDEOTAPE)

MATTHEWS:  Ben, I‘m going to start with you.

Why did the president put up a candidate that has caused so much trouble on the right? 

BEN GINSBERG, FORMER BUSH-CHENEY CAMPAIGN ATTORNEY:  Well, I think the president picked the person who he felt to be the most qualified, who met his judicial philosophy, somebody he has worked with and who he knows shares that judicial philosophy.  And he‘s comfortable with the pick. 

MATTHEWS:  Well, what‘s the point of—of nominating someone for justice in the Supreme Court who has no—no real evidence of being a conservative? 

GINSBERG:  The president has so far, Chris, put forward a stellar roster of conservative nominees for the court.  Harriet Miers has been an integral part of that selection process. 

The president knows Harriet Miers personally and what her judicial philosophy is better than the hundreds of other solid conservatives he has nominated to the bench.  For the most important position that he has got, he has picked the person who he does know the best...

MATTHEWS:  Right. 

GINSBERG:  ... to share that judicial philosophy. 

MATTHEWS:  Is this a pig in a poke, Pat? 

PAT BUCHANAN, NBC POLITICAL ANALYST:  That‘s—that‘s a little rough of a description, but, quite frankly, it is a faith-based nominee. 

The president says she is outstanding. She is in the Scalia-Thomas mold, I guess, although he didn‘t use those exact words.  I don‘t see any evidence of it.  She is not a judge.  She has not ruled on anything.  I don‘t know anything she has written.  I don‘t know about her philosophy.  And I think he has taken a tremendous risk for himself and, quite frankly, a tremendous risk for our cause and movement. 

Chris, we have been waiting 12 years for this appointment.  We‘re on the verge of recapturing the Supreme Court for constitutionalism, and I think the president may have broken that opportunity. 

MATTHEWS:  You gave us, Ben, basically the president‘s job reference

for her, an application to law school, for example.  But when you get a

reference from even a man as esteemed as the president of the United

States, who says great character, great accomplishments, bright, all those things, you still have the law boards to rely on.  You still have the grades to rely on.  In this case, what can the senators rely on besides the president‘s good word for her? 

GINSBERG:  Well, they will be able—well, first of all, a number of them have worked with her.

MATTHEWS:  They can any of his recommendations.  They are not going to release, they‘re making pretty clear at the White House, any of the recommendations she has made to the president, any of the paperwork.  Her accomplishments are inside the White House.  How is a member of the Senate, Democrat or Republican, to judge this nominee? 

GINSBERG:  Well, first of all, Harriet Miers has worked with a number of those senators, and so they will be able to make their own judgments.  They will be able to question her, as they do in—in all confirmation hearings.

And they will be able to make judgments, as they do on—as they have on other Supreme Court nominees and will on this one.  It‘s not a mysterious process, Chris. 

MATTHEWS:  Does she support abortion rights? 

GINSBERG:  Well, I think that‘s a fair—I think that‘s a fair question to be asked of her, but her record indicates that she has been a solid member of the pro-life movement. 

MATTHEWS:  Really.  Is that your experience in talking to her? 

GINSBERG:  I have not talked to her about the subject, but I have seen where she has given money and I have seen the causes that she has worked with.

And she took the courageous stand of going up against the weight and authority of the American Bar Association to try and get them to change heir opinion on the subject.

MATTHEWS:  She‘s been called—I think it was the president who said she is a pit bull in size six shoes.  Was she a pit bull down in Florida when you guys were fighting for the election back in 2000? 

GINSBERG:  Well, I‘m not sure that remember exactly what her role was in Florida, but she has always been, in my experience with her, an outstanding lawyer, a very principled lawyer, a judicial conservative and somebody who—who you want to have on your side. 

MATTHEWS:  You know, I don‘t—Pat, yesterday morning, we were watching all the news and watching all the talk shows, starting with Laura Ingraham.  You listened to her on the program on radio.

BUCHANAN:  Right. 

MATTHEWS:  Then we heard from Rush Limbaugh.  We heard from Bill Kristol of “The Weekly Standard,” neoconservatives, paleoconservatives like yourself.  It seems this is one time you are all united in opposing this nomination. 

BUCHANAN:  Listen, this was the golden opportunity for all of us to be united behind the president of the United States in a great battle to restore the court to constitutionalism.  Chris, we were all ready.  The president has got...

(CROSSTALK)

MATTHEWS:  So, why did he bunt? 

BUCHANAN:  I don‘t know why.

The president, as Ben has mentioned, has appointed outstanding appellate court judges.  They are better than Reagan‘s.  He has got an outstanding selection of young people in their 40s and 50s.  Why he passed over them to go down the hall and pick his lawyer and simply because she was a woman and a buddy escapes me. 

(CROSSTALK)

MATTHEWS:  Ben.

GINSBERG:  Oh, come on, Pat. 

I mean, look, the president has, as you said, had a consistent and stellar record of picking nominees who you like.  I doubt if there are any nominees who you would particularly object to that he‘s put on the bench.  For this one, he picks the person who he knows the best of all those others who he has nominated.  Now, I understand that she is not known to you and others in Washington. 

But what I think this should tell you is that the president is going to make a solid choice.  And once you get to know her a bit, you will end up agreeing with that. 

(CROSSTALK)

GINSBERG:  But just because you don‘t know her now is not grounds to oppose her. 

BUCHANAN:  But, Ben, no, look, I‘m not saying we are opposing her. 

I‘m saying you are asking us to take something on faith...

GINSBERG:  Oh, that‘s good, because that wasn‘t Chris‘ question.

BUCHANAN:  You are asking us to take something on faith, when we had certitude.  We had people like Luttig and Edith Jones.  We have got 55 senators.  We are all prepared to do battle.  We have got a president who needs a battle.  We are all prepared to go over the top.  Why would you do something like this? 

GINSBERG:  Because it is the most important appointment, and the president has picked the person he knows the best to be consistent with his judicial philosophy, which I might add is your judicial philosophy. 

(CROSSTALK)

MATTHEWS:  Why—let me ask you, Ben—I don‘t want interrupt here, because it‘s the fight that we are talking about tonight.  It‘s on the right.

GINSBERG:  It‘s not a fight.

MATTHEWS:  Let me ask it...

GINSBERG:  It‘s a friendly discussion. 

MATTHEWS:  Well, it‘s a dispute.

Let me ask you about—about her and this—this—this anthem we

heard from the president at this press conference, where I thought he was -

a rich performance, by the way, generally.  But he kept saying, and she is not going to change.  And she is not going to change.

Is this a fear that he has—that—on the right, outside the White House, that he may have committed the same sin on the right that his father did in picking David Souter? 

GINSBERG:  No. 

MATTHEWS:  Who turned out to be a far more left-wing or liberal judge than we thought? 

GINSBERG:  No.  I think that...

(CROSSTALK)

MATTHEWS:  Why did he keep she ain‘t going to change?

(CROSSTALK)

MATTHEWS:  That‘s an odd thing to say about somebody.

GINSBERG:  Because that‘s what Pat and his friends were saying.  And it was a response, I think, when I heard it, I thought it was a response to the criticism that has come from the right. 

And what he is saying is that, I have known this woman for 10 years.  She‘s been my lawyer.  I know her better than anyone else I have appointed to the court.  And I have unquestioned faith in her. 

MATTHEWS:  Right. 

GINSBERG:  And if you all don‘t have that unquestioned faith in her, I‘m telling you, she is not going to change. 

BUCHANAN:  All right, Ben, let me tell you what the problem is. 

I was in Nixon‘s White House.  We picked Blackmun.  He did Roe v.

Wade.  Ford picked John Paul Stevens.  He went completely to the left.  Reagan picked Kennedy and O‘Connor.  Both of them turned into swing votes and were profound disappointments to every conservative.  Now we have a golden opportunity.  We have people we know, like Luttig, who have fought these battles, taken their stand, taken their beating, been totally vetted. 

Who vetted—who has vetted this woman? 

MATTHEWS:  Ben, how do you know she won‘t change? 

GINSBERG:  How do you know anyone won‘t change?

But I have a great degree of confidence that she is not going to change.  But more important than that, the president of the United States, who has made outstanding picks, is not—says she is not going to change. 

(CROSSTALK)

MATTHEWS:  If you knew someone who had changed political parties and had changed political parties in their lifetime, would you say that that is a person who doesn‘t change? 

GINSBERG:  I think that—I think that a solid core philosophy can transcend the somewhat transitory political party affiliations...

MATTHEWS:  Or religion?

GINSBERG:  ... or the way you feel in your relationship to God.

MATTHEWS:  Oh, In other words, that she doesn‘t change but—these religions—she changes one for the other, which happens all the time, and she changes a political party for another, which happens all the time.

(CROSSTALK)

MATTHEWS:  But you don‘t usually brag about that person not being the kind of person who changes. 

GINSBERG:  I think we are getting to angels dancing on the head of a pin.

(CROSSTALK)

MATTHEWS:  No.  The president keeps raising this issue.

(CROSSTALK)

GINSBERG:  What I know of Harriet Miers...

MATTHEWS:  OK.  Yes. 

GINSBERG:  ... Chris, and what I believe the president...

MATTHEWS:  Right. 

GINSBERG:  ... who knows her better than us, believes is that she will be a solid judicial nominee in the tradition of all the other people he has put on the bench. 

(CROSSTALK)

MATTHEWS:  Pat, why are you afraid?  Most conservatives are afraid of their kids going to college because they will come back liberals.

Are you guys afraid that if somebody comes to Washington and goes on the bench, they will be just infected or contaminated by the liberals? 

BUCHANAN:  No.  The fear is that this city is so powerful and the post

and this is a very liberal city.  Look at O‘Connor.  They move gradually.  I don‘t think she is going to be a Souter.  My fear is, we are going to have an O‘Connor on the bench.  And the opportunity of a lifetime will be lost.  And it was an unnecessary risk.

MATTHEWS:  So you expect a not quite conservative, someone like Sandra, she‘ll end up like? 

BUCHANAN:  Look, I hope she goes there and says, these fellows, Roberts and Scalia, they know the stuff.  I tend to go to them.  They‘re probably right on these things.  And she will defer to them.  That‘s my hope.  But we didn‘t want...

MATTHEWS:  But your dream would be a synchronized swimmer with Scalia and Thomas. 

BUCHANAN:  We want somebody who will walk in there and...

(CROSSTALK)

MATTHEWS:  OK, let me ask you, Ben, will she be a synchronized swimmer with Scalia and Thomas?  Will she swim with them? 

GINSBERG:  She could.  I think it‘s going to depend on the case.  I mean, my guess is, is that, is that John Roberts, who is the person who she headed up the vetting process and got selected for the Supreme Court, is—is somebody very much in her mold. 

MATTHEWS:  But are they all in the mold together to synchronized swim on the right?  I‘m talking Roberts.  I‘m talking Miers.  I‘m talking Clarence Thomas and Scalia.  Will they be the four on the right now?

GINSBERG:  My guess is, yes, that will be exactly what happens. 

MATTHEWS:  OK.  There‘s a man.  Ben Ginsberg said it like the president hopes it will be. 

Thank you very much, Ben Ginsberg.

Thank you, Pat Buchanan, as always.

GINSBERG:  Thanks.  Nice to be with you.

BUCHANAN:  Thank you. 

(END VIDEOTAPE) 

MATTHEWS:  There you have it, the fight on the right.

Up next, will conservatives buy a pig in a poke?  We will ask Senator George Allen, a leading Republican prospect for the ‘08 presidential nomination.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, let‘s find what a top the president prospect for the ‘08 presidential race thinks about Harriet Miers.

HARDBALL returns after this.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

For the conservatives‘ reaction to President Bush‘s news conference today and to his nomination of Harriet Miers to the Supreme Court, let‘s go to Republican Senator Richard—I‘m sorry—George Allen of Virginia. 

Senator Allen, thank you for joining us. 

What do you make of this dustup we are hearing on the right about the nomination of Harriet Miers? 

SEN. GEORGE ALLEN ®, VIRGINIA:  I think it is understandable, because I think so many of us have been fighting for so many years.  And one of the key issues was judges and making sure that we have judges put on to the federal courts and particularly the Supreme Court who understand that their role is to apply the law, not invent the law. 

And the other thing, Chris, that fires us folks up—and I saw it last year as chairman of the Republican Senatorial Committee—where these judges making decisions that so much contravene and ignore the will of the people.  And we see it this year.  You see them striking down the Pledge of Allegiance in public schools because of the words “under God.”

MATTHEWS:  Right. 

ALLEN:  You see them just a couple of months ago allowing New London, Connecticut, commissars to take people‘s homes, their homes, the American dream, not for a school or a road, but taking that home because they want to derive more tax revenue off of it.  Heck, that is amending the Bill of Rights by judicial decree. 

Now we see an opportunity to gain ground.  And so, the president has a

very good track record.  And, on Harriet Miers, she is just not that well -

she is not that well known.  And he has a presumption of—of—or she doe has a presumption of qualification based upon the president‘s past nominations.  But it does have to be verified, or, as Ronald Reagan says, trust, but verify. 

MATTHEWS:  Well, throw in that Republican judge up in Massachusetts that came out and created, found somewhere in the Massachusetts Constitution something that hadn‘t been found for over 200-years-plus, that there was a right to a gay marriage. 

ALLEN:  Right. 

MATTHEWS:  So, you‘re right.  It‘s a great cause.

Let me ask you, how can you look into a person‘s eyes and decide they are not going to change, when so many judges have changed?  It started with Felix Frankfurter, who became a conservative after FDR picked him, or Ike picked Earl Warren.  There is a plethora of them out there, of judges who have either gone far right or far left after their—their guy has picked them. 

ALLEN:  I have tried to discern that myself. 

As governor, I was able to appoint judges to courts in Virginia and tried to discern whether they had that right philosophy.  And, Chris, it is something you get a feeling about, because you ask them questions and you try to get—hear their analysis.  And when—when you pose a question to them or a scenario or a factual situation, not on a case that will come up, but just a theoretical sort of matter, the way they answer it will give you some comfort. 

Now, if somebody already has served on the court or on the bench, then you have that record.  But that‘s not the only way you look.  And, of course, with federal judges being appointed for life, we have seen so many like Souter, like Justice White, for that matter, who ended up different, much different, than what the president who nominated them thought they would be. 

But it‘s someone—when I was talking with John Roberts and I asked him about what the role of international—international law would be in making decisions, his answer gave me a great deal of comfort that he understood what the role of a judge should be and how—and I‘m not going to get into to what his answer was, but you try to determine that, within their blood, through their marrow, that they are going to stick to these principles once they put on that robe. 

MATTHEWS:  Do you think the president, whose name is Bush, is afraid of making—is afraid of being accused of making the same mistake Bush Sr.  made, his father, in picking David Souter, who turned out to be a liberal?

ALLEN:  Well, I know that President Bush, judging from his past nominees, who are very well qualified and conservative nominees who won‘t legislate from the bench, that he wants those type of men and women on the court, and particularly in this very important opportunity on the Supreme Court. 

He knows Harriet Miers.  I don‘t.  There are those—say, Senator Cornyn in Texas, he knows her.  The rest of us have to get to know her better.  And so, I think she should be given due process. 

But I guarantee you that President Bush doesn‘t want to have a legacy of his presidency of having had this opportunity to put a good solid jurist on the Supreme Court, that it ends up being a Souter.  I don‘t want to be complicit in it as a senator.  And I guarantee you, he doesn‘t want that as part of his legacy. 

MATTHEWS:  What question would you like to ask her? 

ALLEN:  I would—I ask questions—and I don‘t want to say to you how I ask the questions, but how—because I don‘t want somebody just to be giving me an answer, knowing what the question will be. 

There are certain things that are important to me.  And that is that they understand that the laws in this country are made by the people.  This is a representative democracy.  And the people in the states and the people throughout the country make laws through Congress or their legislatures.  And I want to see a respect for that.  I want to see a respect for the Constitution, that there will be a protection of our God-given rights. 

And I want them to understand that the rule of law is so important for our free and just society.  And it‘s important for investment, for jobs.  It‘s important for the credibility of justice in this country.  And I don‘t want somebody who is going to go on there and superimpose their personal views, contrary to the Constitution, nor the will of the people. 

MATTHEWS:  The president got 11 million votes more this time than last time because a lot of evangelicals came out and said, not only are you decisive more than John Kerry, but you‘re also a man who shares our values.  They want abortion outlawed.  Will this woman do it? 

ALLEN:  I don‘t know.  And I don‘t know if you would actually determine that anyway in the midst of questioning.

You may be able possibly to discern whether or not she would overturn state laws that, say, prohibit partial-birth abortion, or, for that matter, we passed that in Congress, or parental notification or parental consent laws for unwed minor daughters going through the trauma of an abortion.  You may get a sense of those.  But, as far as an outright repeal of Roe vs.  Wade, I don‘t think you are going to be able to discern that.  But we may be surprised in the midst of these hearings.

MATTHEWS:  Are you surprised at the Democrats‘ soft reaction? 

ALLEN:  Yes, I am. 

Of course, this is—the only thing that is not a surprise in this nomination is to me that the nominee is a woman.  That is not a surprise to me.  I think this nomination—there were other women who were being considered and talked about, such as Karen Williams from South Carolina on the Fourth Circuit, and Priscilla Owen and Janice Roberts Brown. 

MATTHEWS:  Right. 

ALLEN:  And others.

I know, for our base, when Harry Reid comes out and says what an outstanding choice this is, there is a—there is a visceral reaction, that if Harry Reid likes her, What does he know that we don‘t know?  But I don‘t think people should look at her or judge her that way. 

MATTHEWS:  When is the first time you ever heard her name? 

ALLEN:  Well, I have—I have met with Harriet Miers, talked to her on the phone and met with her several times. 

MATTHEWS:  Right. 

ALLEN:  But we didn‘t talk about judicial philosophy as such. 

MATTHEWS:  Yes. 

ALLEN:  She is a very polite, very pleasant and very likable woman. 

So, as far as her being considered for this position, I guess there were some who were speculating, but I—I wouldn‘t have thought that that was the nominee. 

MATTHEWS:  OK. 

ALLEN:  But it is the president‘s prerogative.  And he knows her very well.  And the rest of us now have to be also convinced. 

MATTHEWS:  OK.  Thank you very much, Senator George Allen.

Coming up, what about the reaction to Harriet Miers from the left?  Will Democrats deny her even an up-or-down vote?  Senator Dick Durbin is going to be joining us.

You‘re—you‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  For the Democratic response to President Bush‘s press conference today and the nomination of Harriet Miers for the Supreme Court, we turn to the Democratic whip in the U.S. Senate, Illinois Senator Richard Durbin, who serves also on the Judiciary Committee. 

Many of your colleagues on both sides and a lot of commentators on the radio and in blog sites, Senator, are saying that the president didn‘t really go for the fences with this one, that he sort of bunted.  Why do you think he did that?  Why didn‘t he go for a real conservative, movement conservative, for the court? 

SEN. DICK DURBIN (D), ILLINOIS:  Well, I think many of us on the Democratic side warned him that if he didn‘t pick someone who was moderate, he would be in for a fight. 

We understand this is a swing seat on the court.  Sandra Day O‘Connor‘s position is going to decide a lot of the cases to come in the next few years.  And if it turned out to be a Priscilla Owen or Janice Rogers Brown, one of the president‘s previous more extreme nominees, it would have been a fight to the finish. 

MATTHEWS:  Well, she has become something of a mood ring, then, because, you know, you think she might be, or I guess you‘re supposed to think, from the president‘s perspective, you and the other Democrats are expected to think, well, maybe she is a moderate, like Sandra Day O‘Connor, someone who switches back and forth between the conservative judges and the liberal judges.  And, yet, the president is swearing by this woman to her fellow conservatives that she is one of us. 

DURBIN:  Well, he has known her for a long time. 

But if you are looking for a record, you are going to have to look hard.  On another show last night, when Orrin Hatch, when he was challenged as to what Harriet Miers can point in terms of her background to prepare her for the court, he said it was her time in the White House.  And so, I said, well, that means we will get to see some documentation, some memos from the White House?  He said, of course not.  That‘s privileged information.

So, at this point, unless she is very forthcoming in her answers to questions or there is documentation we don‘t know about, there is a very limited record to make a judgment on. 

MATTHEWS:  Are you surprised at this fixation by the president—I shouldn‘t make it negative—his concern that this be a person who won‘t change?  He said that a couple of times in his press conference.

It‘s almost like, when we were growing up, your parents would be afraid, if you went to a college, you would turn out to be a liberal.  The fear on the part of the president and his conservative base, apparently, is that, if you send a person to the environment of the Supreme Court in Washington, D.C., they will somehow become lefties.

DURBIN:  I think it see it the other way.

I would like to believe that people are open to ideas and open to learn.  You know, all of us change our minds from time to time as we learn more things.  And I would like to think that life is a learning process, that the longer any person serves on the Supreme Court, the more they come to understand.  Look at Harry Blackmun.  By the end of his career on the Supreme Court, he said, I‘m just going to give up on this death penalty.  I have tried so many ways to fix it.  It can‘t be fixed.

You see the same thing with Sandra Day O‘Connor, a Goldwater Republican from Arizona who becomes more libertarian toward the end of her career, who really takes an open-minded approach.  So, what the president thinks is a virtue I‘m not sure I agree with. 

MATTHEWS:  Well, let me ask you if you think she has that virtue.  She was raised Roman Catholic.  She ended up an evangelical Protestant.  She was raised—or she was a Democrat until fairly recently, before the ‘90s.  Now she is a Republican.  She switched parties.  She switched religions. 

What gives anyone the belief that she is going to stick to her current apparent conservative attitude—conservative attitude on the court? 

DURBIN:  Well, stay away from her religious preference.  That, of course, is very personal to her... 

(CROSSTALK)

MATTHEWS:  Well, sure, but it‘s a change.

DURBIN:  It is a change.

MATTHEWS:  It‘s in evidence of a person who is open-minded, using your terminology, someone who learns things, develops new attitudes towards things, looks for new direction in life.  She seems like, based upon her background, overall, as a person who is searching for something new. 

DURBIN:  Well, I can‘t answer that, because I don‘t know her.  I‘m looking forward to meeting her for the first time tomorrow and getting to know her during the committee process.  But what a limited opportunity each member of the committee will have to understand the background and future of a person who will be on the Supreme Court for the rest of her life. 

MATTHEWS:  What would she have to do to get Dick Durbin‘s vote? 

DURBIN:  Well, you know, what was missing with John Roberts, he had a great legal resume, a terrific mind, a honest person, good temperament.

But I was trying to just get some insight into some personal part of his life to give me an idea of his values.  Remember when Joe Biden asked him, as a father, what would you do in a circumstance where your parent is dying, but doesn‘t want extraordinary medical care?

MATTHEWS:  Right. 

DURBIN:  Can you tell us?  And he said, I won‘t answer it. 

And so, time and again, when we just tried to get a glimpse into his values and who he was as a person, he really was too guarded, too cautious, too afraid of his political vulnerability.

MATTHEWS:  But isn‘t that a catch-22 for the other side?  If a conservative were to tell you that, even an extremist, I would deny my parents any poison or any dehydration or anything, I would make them suffer through it, wouldn‘t that discourage you from voting for them, if they were honest?

DURBIN:  Well, it—there is some risk involved in this.  But let‘s be honest.

I think a person who is more honest and open and candid, I‘m going to be moving toward them, even if I don‘t agree with them on everything.  But when you have one who is so guarded and wants a lifetime position and to decide the basic freedoms of America, the important institution when it comes to our rights and liberties, I really need some insight into what they really think. 

MATTHEWS:  Remember Robert Bork?  He couldn‘t have been better if he had been on sodium pentathol.  And yet most of the liberals—in fact, he lost a majority vote because he was forthright.  How do you get it right if you‘re a conservative?  If you‘re an honest conservative, you are nailed by the liberals.  If you not open and forthright, you are nailed as not forthright.

DURBIN:  Well...

(CROSSTALK)

MATTHEWS:  How do you win, if you‘re a conservative, against liberal opposition? 

DURBIN:  Bork‘s problem wasn‘t candor. 

It was the fact that he was cantankerous and his views were so

strange.  And most people, when they got to hear a little bit more from

him, decided they didn‘t want him on that Supreme Court.  But you look at

other justices who come before the court—or before the committee, I

should say.  And whether it‘s Souter‘s or Kennedy or others, even Ginsburg

I think, if you closely at her record, she really gave you more of an insight into who she was a person.

They weren‘t afraid to say, this isn‘t just a matter of some automatic decision by a judge.  You have to put your heart into these decisions from time to time. 

(CROSSTALK)

DURBIN:  There will be a small percentage of cases where that‘s necessary. 

MATTHEWS:  Last question.  Does this nominee deserve an up-or-down vote, up or down by the Senate, yes or no?

DURBIN:  Well, I think it will reach that point.  I believe that nominee will likely come from the...

(CROSSTALK)

MATTHEWS:  Would you commit now to letting her have an up-or-down vote? 

DURBIN:  Well, at this point, it‘s way too early.  Let‘s wait for the information...

(CROSSTALK)

MATTHEWS:  You are not willing to say that she deserves an up-or-down vote, even because—just... 

(CROSSTALK)

DURBIN:  I wouldn‘t prejudge her in either direction.  In all fairness, we need to look at her record, listen to her carefully, before making any decision. 

MATTHEWS:  OK.  Thank you very much, Senator Dick Durbin of Illinois.  Actually, I should say, the Democratic whip.  He is the number two Senate Democratic whip now—number two Democrat.

Still ahead, a closer look at Harriet Miers and what we can expect her to say during her confirmation hearings that are coming up. 

Plus, the battle among conservatives over the Miers nomination.  It‘s a big intramural fight right now in the right.  Can President Bush convince the right that he has made the best choice?  He is trying hard. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

“The Wall Street Journal” editorial page, always a reliable bellwether

for conservative sentiment in this country, lamented the pick of Harriet

Miers as someone without a public voice in recent judicial fights—quote

“The lesson this nomination in particular will send to younger lawyers is to keep your opinions to yourself.  Don‘t join the Federalist Society.  And, heaven forbid, never write an op-ed piece.”

“The National Review,” required reading for Washington insiders, was one of the first to attack Harriet Miers. 

Kate O‘Beirne of “The National Review” is with us, as well as syndicated columnist E.J. Dionne.

(LAUGHTER)

MATTHEWS:  Thank you very much.

E.J. DIONNE, “THE WASHINGTON POST”:  Good to be with you.

MATTHEWS:  I know.  It‘s great.

Kate, what‘s your beef? 

KATE O‘BEIRNE, “THE NATIONAL REVIEW”:  I wouldn‘t call it an attack from “National Review.”  But I do think...

MATTHEWS:  It‘s a beef.

O‘BEIRNE:  But I do think “National Review” has a beef.  And I do think “National Review” expressed a widespread feeling on the part of conservatives, if anything, Chris, growing today, since yesterday, that it was, at best, a huge missed opportunity. 

It‘s 2005.  There are so many articulate lawyers who would have the qualities to be on the bench.  No president ever can be sure what his nominee is going to do.  But the odds that that person is going to be an unpleasant surprise are lessened if the person has an overarching, well-articulated, frequently defended judicial philosophy.  We don‘t have that in the case of Harriet Miers. 

MATTHEWS:  I think I can jack up your attitudes a little bit here. 

And I‘m guessing here.

There is sign of an attitude about him.  She is a good worker.  She is bright.  Do you hear condescension?  Would he ever said that about John Roberts?  He is a good worker?  He‘s bright?  Doesn‘t that bother you a little bit? 

O‘BEIRNE:  Well, he might.  Those are personal qualities...

(CROSSTALK)

MATTHEWS:  They‘re not condescending male-female qualities that you see?

O‘BEIRNE:  No.  No.  No, I don‘t see that.

(CROSSTALK)

O‘BEIRNE:  I think they are those kind of qualities this president would admire. 

I do think it is the case, though, that sometimes we are less able to judge people the closest to us.  I don‘t see this...

MATTHEWS:  Cronyism. 

O‘BEIRNE:  ... as a main...

(CROSSTALK)

MATTHEWS:  So, that‘s what you are charging? 

O‘BEIRNE:  It happens—it happens in all walks of life. 

MATTHEWS:  Yes. 

O‘BEIRNE:  We are—we are—we see people we don‘t know as well a little bit more objectively.

You know, we tend to overlook things about people we know all that well.  I don‘t see this as a major strength.  And it‘s not what he promised on the campaign trail.

MATTHEWS:  Right. 

O‘BEIRNE:  He wasn‘t saying in either 2000 or 2004 to his conservative supporters, who care so much about the bench, when it comes time to make an a fundamental important appointment to the bench...

MATTHEWS:  Right. 

O‘BEIRNE:  ... I‘m going to pick somebody I have known for 20 years that I have a complete trust in, whether or not you ever heard of that person.  That‘s my pledge to you.  That‘s not what he promised.

MATTHEWS:  Has he—has he become LBJ incarnate, Bush?  He‘s becoming sort of a Texas whatever.

You know, during the—after Katrina, he went down and promised everything.  It was LBJ announcing the OEO, big spending, blah, blah, blah.  He sounded like he was channeling LBJ  And now he‘s naming cronies.  Remember, LBJ would name Thornberry and he would name Justice Fortas.  And even the Kennedys would play around.  Remember Morrissee (ph), a real interesting choice?

This cronyism is another aspect of Texas Democrats.  Why is Bush engaging in picking somebody that nobody else on the planet would have ever picked for chief justice—or associate justice?  No one else would have thought of her.

E.J. DIONNE, “THE WASHINGTON POST”:  Well, I think, clearly, it‘s a sign of weakness.  He needed a woman, because everybody was telling him he needed a woman.  He didn‘t want somebody...

MATTHEWS:  Were you telling him that? 

DIONNE:  ... who would alienate liberals.

MATTHEWS:  Were you telling him that? 

(CROSSTALK)

DIONNE:  No, I actually never wrote that. 

(CROSSTALK)

DIONNE:  I like the—personally, I liked the idea of replacing Sandra Day O‘Connor with a woman, although I think, for example, one of his best picks might have been Michael McConnell, who is a man, who would have given a liberal like me some trouble.  I would you have figured out a way to be against him, maybe.  But he was a very smart—he would have filled all of Kate‘s wishes there. 

You know, I was struck in that “National Review” editorial—I couldn‘t resist bringing it—“Being a Bush loyalist and friend is not a qualification for the Supreme Court.”

There is a style of politics here.  And I think it was a very dangerous choice, because that word cronyism has just really entered the political bloodstream in the wake of Katrina. 

(CROSSTALK)

MATTHEWS:  OK.  Now that the Sox are in the playoffs, both Sox teams,

OK.

DIONNE:  And we were down the last I looked.

MATTHEWS:  I‘m going to talk to you about this issue of bunting.  And I think you both agree from right and left both.

Why did a man not go for the fences?  As you pointed out, he is in his second term.  He earned it twice.  He‘s definitely earned it once.  He won by 11 million more votes the second time.  He is in there.  He has got, as somebody pointed out, 55 senators on the Republican side.  He has got a comfortable majority in the country on this kind of cultural issue.  Why didn‘t he go for the fences?  Why did he bunt? 

O‘BEIRNE:  Ironically, I think, to challenge your premise, I think he was more apt to have appointed a more obvious conservative jurist—that‘s the wrong word, but somebody who believes in judicial restraint and who had a paper trail—in the first term.  I don‘t think he would have nominated Harriet Miers in his first time, when he...

MATTHEWS:  He was nervier then.

O‘BEIRNE:  When he was facing reelection and had to really worry about his conservative base. 

MATTHEWS:  So, what—you make my point.  Why has he lost his guts? 

O‘BEIRNE:  I don‘t—I don‘t think it was a matter—I don‘t think it was a matter of guts.  I think he needed conservatives in 2004 and wouldn‘t have run a risk of alienating them by appointing Harriet—by nominating Harriet Miers to the bench. 

MATTHEWS:  Are you saying his alliance with the cultural right is just utilitarian?

O‘BEIRNE:  I think might have—he might feel he has more running room, because exactly for the reason you named.  He‘s not running again.  And this is what he wants to do.

I think his conscience is clear.  He believes that she shares his philosophy on judges.

MATTHEWS:  Yes. 

O‘BEIRNE:  He believes that he knows her well enough.  He is asking his conservative supporters to trust him and give him the benefit of the doubt.  And their response is, we have trusted other Republican presidents in the past.  And the conservative...

(CROSSTALK)

MATTHEWS:  They have picked Blackmun and they have picked Souter. 

(CROSSTALK)

O‘BEIRNE:  The conservative judicial bench now is—is deep enough that we don‘t have to trust your instincts or Ken Starr‘s when it comes to Anthony Kennedy or John Sununu‘s when it came to David Souter.

(CROSSTALK)

MATTHEWS:  You‘re a political—both you people, I want to ask you a totally nonideological question, just a pure sportsman‘s bet.  Could he have gotten confirmation of a Luttig or a conservative, a real movement person who had a record, of a record of trials and verdicts, a paper trail, as you say?  Could he have gotten through someone like that on the right?

O‘BEIRNE:  I absolutely believe that person would be confirmable, correct. 

And I think—and a lot of conservatives agree—it is an important fight to have.  It would really help educate the public about the stakes involved with the Supreme Court when we actually were able to engage on that level. 

MATTHEWS:  Right. 

(CROSSTALK)

MATTHEWS:  So, would you agree that would be good for the country?

(CROSSTALK)

MATTHEWS:  As a liberal, do you think it would be good for the country to have a debate over the court?

DIONNE:  I think we should have a debate over all these issues.  I mean, that is why you have this odd conjunction of certain kinds of conservatives and certain kinds of liberals.

MATTHEWS:  Will we get one with this appointment or will we have just a personal sort of vetting, like she is applying for a job somewhere? 

DIONNE:  You know, the thing that surprises me how many liberals are saying, this is a victory. 

(CROSSTALK)

DIONNE:  Well, how do you know this is a victory?  They don‘t know any better Kate does where she stands.

(CROSSTALK)

MATTHEWS:  Why would Harry Reid put his arm around her practically yesterday?  Why are these people so soft on her on the left? 

DIONNE:  Well, not everybody on the left.  Pat Leahy was pretty tough, saying, we are going to look into her—how close she is to the president. 

(CROSSTALK)

DIONNE:  Ted Kennedy, of course.  But I was surprised by the Harry Reid comment.  There clearly is some kind of a relationship there.  Maybe they worked together on something.

(CROSSTALK)

O‘BEIRNE:  Chuck Schumer said, hey, it could have been worse. 

(CROSSTALK)

DIONNE:  Well, see, I think Democrats are eager to say, we won something...

(CROSSTALK)

MATTHEWS:  That is a way to spook the right, isn‘t it, to have these guys put their arm around her?

O‘BEIRNE:  It doesn‘t help, Chris. 

(CROSSTALK)

(LAUGHTER)

MATTHEWS:  We will be back with Kate.  And we will be back with E.J.

Dionne in a moment.

And tomorrow on HARDBALL, Howard Dean right here, the chairman of the Democratic Party.  I want to ask him what the Democratic Party stands for.  I can‘t figure it out these days.  What will they fight for?  What will they die for?  Big questions.  I want the answers.

And a reminder, the political debate is going on Hardblogger, our political Web site.  Just go to HARDBALL.MSNBC.com. 

(COMMERCIAL BREAK)

MATTHEWS:  Still ahead, eroding support for the war in Iraq and another indictment against key ally Tom DeLay and the ongoing CIA leak investigation.  Can the president regain his swagger? 

HARDBALL returns after this.

(COMMERCIAL BREAK)

MATTHEWS:  We are back with Kate O‘Beirne of “The National Review” magazine.

By the way, happy anniversary.  What is it, the 50th anniversary?

O‘BEIRNE:  Well, thank you, not mine personally, I want to hasten to add.

(CROSSTALK)

MATTHEWS:  But I grew up knowing every drugstore that had magazine first.  I loved that.  And I loved Bill Buckley for his education of al of us in politics.

(CROSSTALK)

MATTHEWS:  Anyway, and, E.J. Dionne, syndicated columnist.

O‘BEIRNE:  Thanks, Chris. 

MATTHEWS:  Let‘s do a little round-robin here, touch bases with some things.

Tom DeLay, how do you read this new layer of indictments coming out of Texas? 

O‘BEIRNE:  It seems to underscore the argument Tom DeLay and his supporters have been making.

The prosecutor in Texas has had four or five grand juries looking at this for a couple of years, comes up with an indictment that now apparently cited a law that is not applicable.  So, he tears that one up, throws it out, and, within a matter of hours, gets a brand new indictment on a complicated financial case from a new grand jury.  I think it looks like he has got a grand jury there that will do anything he wants them to do. 

MATTHEWS:  He seems to have a lot of temps down there, people he can call in at a moment‘s notice.  Last week‘s didn‘t work because there‘s a problem with the standing he had. 

DIONNE:  Although it hasn‘t been thrown out yet.  It is an indictment on the same subject. 

(CROSSTALK)

DIONNE:  It‘s money laundering.  It‘s a little clearer, this one, than the other one.

(CROSSTALK)

MATTHEWS:  Is this curtains for this guy, the money laundering charge that has now been renewed? 

DIONNE:  I don‘t see.  If anybody could come back, I guess it‘s Tom DeLay.  But I don‘t see how he comes back in the leadership again. 

(CROSSTALK)

MATTHEWS:  Does this hurt the Republican Party‘s chance of holding the Congress they fought for so—almost a half-century to win, and now they might—they may lose it? 

DIONNE:  Yes, but not as much as if it would have happened—as if this indictment had come around this time next year. 

MATTHEWS:  OK.  Put it together with Frist, who the SEC is going after for Martha Stewart type thing, although it‘s not that he lied, because there‘s no evidence he has, but that he seemed to be in charge of his blind trust in a way he wasn‘t really supposed to be.

O‘BEIRNE:  Well, it certainly is the case with respect to this money laundering charge against Tom.

Quickly, it has to be said that, when Ronnie Earle, the prosecutor, was asked when he delivered the first indictment, well, why wasn‘t he indicted on money laundering, his response was, because the grand jury indicted him based on the evidence.  Well, based on the same evidence now, this brand new grand jury has come up with this money laundering charge.

If you look at the facts, that is a ridiculous factual charge.  The facts, I think, also might benefit based on new accounts Bill Frist, given the time frame of when he put in an order to sell. 

MATTHEWS:  Yes. 

O‘BEIRNE:  But, sometimes, in these cases, Chris, the facts don‘t matter if there‘s sort of an aura or a whiff now about insider...

(CROSSTALK)

MATTHEWS:  Are you surprised he hasn‘t been more defiant and come out and said, look, I did nothing wrong? 

(CROSSTALK)

MATTHEWS:  He‘s been so quiet.

O‘BEIRNE:  I think he has said that. 

MATTHEWS:  Has he?

DIONNE:  Well, it looks strange.

Just on the Tom DeLay thing real quick, the original—the money laundering happened.  The question is whether it was legal or illegal, the money passing from one committee to another, so it wouldn‘t look like corporate money.

(CROSSTALK)

MATTHEWS:  I have interviewed—I have interviewed people like Tom Davis and Mr. DeLay himself.  They don‘t really argue about the facts.  They say, look, it happens all the time.  You move the—what‘s called the soft money to Washington and then you get back the hard money.  It‘s like a guy—lending your neighbor some sugar and he gives you back something else.  He lets you borrow the lawn mower.

(CROSSTALK)

MATTHEWS:  You know, they don‘t deny that. 

(CROSSTALK)

DIONNE:  It‘s one of the clearest indictments here.  You could actually follow what the guy was saying here. 

O‘BEIRNE:  Well, except, E.J., you are using this loaded term.  In the exact same time frame, another $250,000 came in from a wealthy Texan to the Republican Committee.  Why wasn‘t it his $250,000 or $190,000 that went back to Texas? 

(CROSSTALK)

MATTHEWS:  It all depends on the conversations had with the corporate people who spent the money down in Texas and what—did they spend the money because they wanted to get the state legislative victories?  Or did they give it for some other reason?  You are going to have to do the case.  We are going to have to do the case, right?

O‘BEIRNE:  We are going to have to do the case.

MATTHEWS:  We have to go to court...

(CROSSTALK)

MATTHEWS:  But I‘m asking you, does this affect this president, to have his top two congressional leaders in trouble?  Does it bother him we got a CIA investigation, when you can hear the hoofbeats of that one coming? 

O‘BEIRNE:  Yes.  They are certainly all, at minimum, unwelcome directions.  And, of course, Tom DeLay plays a crucial role in the House.  You know, he has delivered—everybody credits him with that—delivered some really important victories to the president.

MATTHEWS:  Right. 

O‘BEIRNE:  The House majority will, I think, be weakened if he‘s no longer...

(CROSSTALK)

MATTHEWS:  How did the president today, as—his appearance generally overall?

DIONNE:  The...

MATTHEWS:  His press conference.

DIONNE:  He got stronger toward the end. 

MATTHEWS:  He sure did.

DIONNE:  I think, some of these things in the middle, like, well, she won‘t change for 20 years, that was kind of an odd statement.  I hope I change a little in 20 years.

MATTHEWS:  Did you think he was strong today or weak?

O‘BEIRNE:  I thought it was an OK performance.  I think it is important to remind people the kinds of things, what his short-term agenda is, because I think some people have been wondering, what is his agenda?

MATTHEWS:  I think the reason people liked him was repaid today.  I think he was likable.  I think he was human. 

And when he talked about race, he seemed definitely hurt by the charge by that reporter that he might not be open to blacks.  I think he really thinks he is a good guy.  I‘m not saying that he is.

DIONNE:  Most of us hope we are.

MATTHEWS:  Do we?

DIONNE:  We hope we are.

MATTHEWS:  Well, he does.  And I think that is something that works for him.  I think he thinks he‘s working with the lord.  I think he thinks it.  And I think it helps him.

(CROSSTALK)

O‘BEIRNE:  No Catholic guilt, Chris. 

(LAUGHTER)

MATTHEWS:  Well, maybe he is relieved of that.  We will talk more about that.

Thank you, Kate O‘Beirne and E.J. Dionne.

When we come back, filling in the blanks.  Can conservatives be sure of this woman, Harriet Miers?  We are talking a lot of about her tonight, because she is going to have a big role in our lives if she gets on the court.  On every issue you can think of in our lives, she is going to have a vote.  And we won‘t.

We are going to ask a former colleague who worked with her at the White House counsel‘s office what she is like to work with and what does he know that we don‘t.

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  A day after President Bush nominated her to the Supreme Court, Harriet Miers remains unknown.  She is a White House lawyer with no experience as a judge. 

Noel Francisco—I love that name—worked with Miers at the White House counsel‘s office. 

You were at the counsel‘s office.  She was staff secretary. 

NOEL FRANCISCO, WORKED WITH HARRIET MIERS:  Yes.

MATTHEWS:  What do you know about her we don‘t? 

FRANCISCO:  Well, you know, what I can tell you is that, when I was in the White House, the one thing that Harriet‘s office was always known for was competence. 

I was in the government for four years in the White House and Department of Justice.  And when you are in the government, mistakes get made.  But there was one place where there never was a mistake was, and that was where Harriet was.  That was the case when she was the staff secretary to the president.  And that was the case when she was the White House counsel.  And I know that because I worked with her when I was in the Department of Justice during her time as White House counsel. 

MATTHEWS:  When was she staff secretary?  What years? 

FRANCISCO:  The first two years of the administration. 

MATTHEWS:  Not in 19 -- in 2003, as we went to war, was she?

FRANCISCO:  She was staff secretary during that time.

MATTHEWS:  Would she have been responsible for the papers that went to the president? 

FRANCISCO:  Harriet, as staff secretary, is the one who would have been the one who managed all of the paperwork into the president. 

MATTHEWS:  And she would have been responsible for the 16 words in his State of the Union address that said that there was a deal in Africa to buy nuclear materials by Saddam Hussein? 

FRANCISCO:  Well, you know, I can‘t...

MATTHEWS:  Would she have let that get by her, when that wasn‘t the case? 

FRANCISCO:  Well, you know, the staff secretary‘s job is not to...

(CROSSTALK)

MATTHEWS:  ... the paper to everybody.

FRANCISCO:  ... is to make sure that the paper had been properly coordinated. 

MATTHEWS:  By everybody, checked off by the V.P., checked off by the Scooter, checked off by the CIA? 

(CROSSTALK)

FRANCISCO:  There is a process for clearing the paperwork that Harriet manages, yes. 

MATTHEWS:  But doesn‘t she have the process requirement to make sure the president doesn‘t say something he shouldn‘t?  Isn‘t she supposed to check everything?

FRANCISCO:  I think the staff secretary‘s primary function is to make sure that the paperwork is properly coordinated amongst the White House staff, yes. 

MATTHEWS:  What was her role with regard to the tricky decisions like the partial—the issue of partial-birth abortion, where the president signed that bill to outlaw that procedure?  What would her role have been?           

FRANCISCO:  Well, sure.

I mean, as staff secretary, Harriet‘s primary role is to make sure that all the paperwork comes into the White House, comes into the president‘s office, and all of it has been properly cleared through the right people.  Her job at that time was not as the president‘s lawyer.  That would have been the counsel to the president.  And that was Al Gonzales at the time. 

I have to tell you that one of the important things...

(CROSSTALK)

FRANCISCO:  Let me just say, one of the important things about the staff secretary‘s job is that she is always by the president‘s side.  Who knows what kind of interactions they have on the side. 

MATTHEWS:  Yes, that‘s the key question.

FRANCISCO:  And the president has the unique opportunity, by spending so much time with her, the unique opportunity to really gauge the type of person who is standing there with him all that time. 

MATTHEWS:  But here is the question I‘m asking sitting here.  He has picked her for the United States Supreme Court, to judge issues like abortion rights and gay rights and civil liberties and war and peace.  Did he ever ask her, her opinion on these issues? 

FRANCISCO:  Well, I mean, I think...

MATTHEWS:  If he didn‘t, it‘s sort of a statement he doesn‘t really care what her opinion is. 

FRANCISCO:  Well, no.  I think the president today said that he can‘t

he didn‘t recall ever having a specific conversation with Harriet on abortion. 

MATTHEWS:  But did he ever ask her about... 

(CROSSTALK)

MATTHEWS:  Did he ask her counsel on things?

(CROSSTALK)

MATTHEWS:  Did he ever check with her?

FRANCISCO:  Of course.  The president has known Harriet for 10 years. 

She was his lawyer in Texas.

MATTHEWS:  Right. 

FRANCISCO:  She came to Washington with him.

MATTHEWS:  So, it‘s likely that he did at some point ask her all these questions? 

FRANCISCO:  No, I mean, it‘s likely that he has had a lot of experience interacting with her on a wide variety of issues, where he‘s gauged her general approach to the law, her general approach to issues.

MATTHEWS:  Do you like her? 

FRANCISCO:  I think the world of Harriet Miers. 

MATTHEWS:  OK.  Well, thank you, Noel Francisco.  And I do love your name.

(LAUGHTER)

MATTHEWS:  Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  I will ask Democratic National Chairman Howard Dean what the party stands for these days.  I‘m waiting to hear.

Right now, it‘s 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.

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