updated 10/6/2005 12:18:16 PM ET 2005-10-06T16:18:16

Guests: John Fund, Charlie Cook, Nathan Hecht, Howard Dean, Kay Bailey Hutchison

CHRIS MATTHEWS, HOST:  Where do the Democrats stand on the Harriet Miers nomination, on the war in Iraq, on abortion, on taxes and spending?  You will the get answers here tonight from the chairman of the Democratic National Committee, Howard Dean. 

Plus, the fight in the right on the Harriet Miers Supreme Court nomination has turned Category 3.  Will it grow higher once it hits landfall when the Senate hearings actually begin? 

Let‘s play HARDBALL. 

Good evening.  I‘m Chris Matthews.

The eruption from the right continues today, with conservatives from Trent Lott to George Will knocking the president‘s nomination of his White House counsel, Harriet Miers.  Could this battle turn into a full-raging rebellion on the Republican right, with the president forced to pull her?

And a Pentagon official pleads guilty to spying on Israel.  More on this later.

But, first, where is the leadership of the Democratic Party today? 

I went straight to the top and talked to the chairman of the DNC, Dr.

Howard Dean. 

(BEGIN VIDEOTAPE)

MATTHEWS:  Dr. Dean, were you surprised by the nomination of Harriet Miers to be a member of the United States Supreme Court?

HOWARD DEAN, CHAIRMAN, DEMOCRATIC NATIONAL COMMITTEE:  I was surprised.  I‘m like most every other American, including the ones in Washington.  We know almost nothing about her.  And there‘s a lot of questions to be answered before she gets a lifetime appointment.

MATTHEWS:  Would you have ever thought of her as a possible court nominee?

DEAN:  No.  You know, she‘s a person who‘s very much below the radar screen as the president‘s legal counsel. 

But there‘s a lot of questions.  I do think the president should make sure the Senate knows about her positions that she took while she was the president‘s legal counsel, because it‘s the only documentation that we‘re going to have about what she believes.

MATTHEWS:  Do you believe that the president can claim executive privilege?

DEAN:  Well, certainly the president can claim executive privilege.   But, in this case, I think with a lifetime appointment to the Supreme Court, you can‘t play, you know, hide the salami, or whatever it‘s called.  You have got to go out there and say something about this woman.  She‘s going to get a 20 or 30 appoint—a 20 or 30-year appointment, to influence America.  We deserve to know something about her.

(CROSSTALK)

MATTHEWS:  Are you being consistent?  During the campaign, there was an issue of you releasing records from Montpelier.  And you were fighting that case.  You were saying, “I don‘t want to release these records.  They divulge a lot of personal matters.  I‘m not going to do it.”  Now you‘re saying the president should release these papers.

DEAN:  Well, actually, I did release about two-thirds of my records.  The stuff that I didn‘t release was stuff people that—it was not about people who were up for appointment to the United States Supreme Court, I can assure you of that.

MATTHEWS:  Let me ask you, is this a case of cronyism?

DEAN:  I wouldn‘t go that far.  We don‘t know Ms. Miers.  I have always believed people ought to be given the benefit of the doubt. 

I thought long and hard before I opposed Judge Roberts, and I opposed him because I thought he would not protect the most vulnerable Americans.  Now we‘ll get a chance to see.  Until I know something about her, I‘m not willing to condemn her.

MATTHEWS:  Judge Roberts got an even split among the Democratic senators.  I think it was 22-22.  Do you think this woman will do as well?

DEAN:  I just have no idea, Chris.  I have no idea.  I know nothing about her.  And I don‘t think many people in America know much about her.

MATTHEWS:  John Roberts, when he was up before the Senate Judiciary Committee, said he was not an ideologue.  In fact, he was implying he wasn‘t a partisan politician.  Do you think she can make that claim, having served so loyally this Republican president?

DEAN:  You know...

MATTHEW:  Can she claim not be an ideologue when she‘s been such a Bushie?

DEAN:  Well, I don‘t think she probably is an ideologue.  I think she‘s probably a pretty smart lawyer, but that doesn‘t mean she ought to be on the Supreme Court. 

I think we ought to know whether she‘s going to defend Americans, whether she‘s going to defend all Americans.  I wasn‘t very impressed by Judge Roberts questioning the voters of Oregon on the euthanasia laws they have.  It seems to me that, if you believe in states‘ rights, that you ought to support the state‘s rights. 

And he seemed to take a contradictory view of that.  So, I think let‘s find out what these folks are like, which you find out pretty fast when they go on the bench.  And I think it‘s really, really important that we know a lot more about her than we do right now.

MATTHEW:  George Will said in a column this morning that there‘s no reason right now why this woman should be approved for the court.   It‘s up to her to prove herself.  Do you take that stand, that it has yet to be proven, and she has to do it, that she deserves a seat on the Supreme Court?

DEAN:  Yes, I think she has to prove that she can defend the American Constitution, something which Justice Scalia and Justice Thomas, for example, did not do and have not done very well. 

We need people who will—will actually do what the Constitution says, who will protect all Americans equally under the law and not try to rewrite the Constitution, so it looks like a right-wing Federalist Society agenda.  That‘s all I ask for, is somebody who is going to be thoughtful.

(CROSSTALK)

MATTHEW:  Does it bother that she‘s been to pro-life events?

DEAN:  No. 

I mean, you know, I‘m a strong believer that the government ought not to tell women how—what kind of health care they ought to have.  But I don‘t mind what her religious convictions are, as long she upholds the law.

MATTHEW:  The Democratic Party supports abortion rights.  Do you?

DEAN:  Yes.  I believe that a woman ought not to be told by the government what kind of health care she ought to have.  That‘s not the government‘s business.

MATTHEW:  Do you believe the Democratic Party is still consistent on that position, despite the comments by Hillary Clinton about the need for dialogue and all that?  Do you think...

DEAN:  Hey, listen...

MATTHEWS:  ... the party is still sound on this?

DEAN:  ... I think we ought to have the smallest number of abortions as possible. 

You know, abortions have gone up since George Bush has been president.  I think we ought to reduce abortions to the smallest number possible.  But I don‘t think you do it by taking away the right of women to make up their own mind about the way their lives are going to be shaped.

MATTHEWS:  So, in this upcoming birth on partial-birth that‘s coming -

there‘s going to be a verdict on that sometime after Thanksgiving—do you think it‘s important that the new justice be a person who supports abortion rights down the line, supports Roe v. Wade?

DEAN:  I think it‘s important that the new justice is willing to grant individual freedoms to all Americans, not just on the issue of abortion, but the individual freedom to make up—for voting rights, for example. 

I think they ought to defend people‘s ability to vote unharassed.  I think this thing they‘re doing down in Georgia, where they‘re going to charge people 20 bucks for an I.D., so they can vote, that‘s going back to the days of Jim Crow.  Those are the kinds of things I really care about.  I want people to—to defend the individual freedoms and rights of Americans.  And, so far, we haven‘t seen that happen from the right wing.

MATTHEWS:  Dr. Dean, you‘ve been very cautious here, and I think a lot of Democrats have.  You‘re not alone.  Why are the right-wing people, the people on the radio all day, Rush Limbaugh, Laura Ingraham, people like David Frum, Bill Kristol, who was immensely important in knocking the Hillary Clinton health care plan—he has a big power in this country—why are they out there with their blunderbuss going at this nomination, and you‘re so cool about it?

DEAN:  Well, I don‘t know.  They can say whatever they want.  That‘s what they do.  Sometimes the people who talk the most know the least.

MATTHEWS:  Oh.

Let me ask you about Iraq.  One in six Democrats now tell pollsters that the war in Iraq was worth it.  Are you one of those one in six, or one of the five in six—I should say, well, only one in six say it‘s worth it.  Are you one of the one in six or one of the five in six who don‘t think it was worth it?

DEAN:  Well, I think, Chris, one thing I am is consistent.  I thought this was a bad idea in the first place because I believed that we would get just in the kind of mess that we have. 

It looks like, first, now the Iraqi government that George Bush is supporting to hard is trying to rig the vote on the constitution.  Women appear to be worse off under this constitution than they were under Saddam Hussein.  I think this president‘s made a terrible mistake.  Now we‘re stuck.  We‘re in there.   It‘s not responsible to take our troops out tomorrow, but we need to get our troops out of there and we need to do it in a reasonable way and not lose any more lives.

MATTHEWS:  Most Democrats, in fact all but a quarter, think that your party, you, don‘t have a policy, an alternative, to President Bush on Iraq.  What is your clear-cut alternative to what he‘s doing now in Iraq?

DEAN:  Well, our clear-cut alternative, of course, wouldn‘t have been to get in there in the first place. 

But I think our clear-cut alternative is, we know we have to come home.  The American people are sick of this, they think this was a mistake.  The question is, what—the timetable to come home.  There‘s a lot of reasonable alternatives.   I personally don‘t think it‘s reasonable to pull out all the troops tomorrow.  But I clearly think sooner is better than later.

MATTHEWS:  If we haven‘t begun that withdrawal by next November, the election of congressmen and senators across the country, will this be a campaign issue?

DEAN:  It will be, but I think the culture of corruption that Tom DeLay and Karl Rove and Scooter Libby and Bill Frist and the Ohio people are bringing to the Republican Party is a much bigger campaign issue.  

You can‘t trust Republicans with your money.  Not only can they not handle, in terms of driving up huge deficits, but it turns out they‘re also putting it in their own pockets.  Nobody likes corruption, not conservatives, not liberals, not Democrats, not Republicans.

MATTHEWS:  Who—Dr. Dean, who was putting money in their pockets in the Republican leadership?

DEAN:  Well, first of all—well, certainly Tom Noe was, who gave money to a lot of other people.  Jack Abramoff was putting money not just into his own pocket, but into...

MATTHEWS:  Right. 

(CROSSTALK)

MATTHEWS:  The former aide to Tom DeLay, right.

DEAN:  Right, maybe into Tom DeLay‘s pocket, which was certainly benefiting a bunch of folks in Texas who were running for reelection.  

And then you have the issues of revealing what may be national security secrets...

MATTHEWS:  Right. 

DEAN:  ... which Karl Rove and Scooter Libby are accused of.  And then you have the question which would be money in their pockets if it is proved to be founded, of whether Senator Frist participated in insider trading or not, which is currently being looked at.

MATTHEWS:  Right. 

You‘re talking about these junkets that DeLay‘s accused of taking at the behest of Jack Abramoff, his former aid, when you say money in his pocket.

DEAN:  Yes. 

(CROSSTALK)

DEAN:  I‘m talking about the junkets, the free trips—but I‘m also talking about the indirect benefits of having more Republicans by circuitous—circumventing the campaign laws in Texas by putting corporate money, washed through the Republican National Committee, into Texas illegally, which is what he‘s charged with in his indictment.

(END VIDEOTAPE)

MATTHEWS:  When we come back, Howard Dean on the White House-CIA leak investigation.  Plus, what‘S the Democrats‘ plan to combat rising gas costs?

And, still ahead, countering criticism from the right.  We will talk to Republican Senator Kay Bailey Hutchison from Texas. 

And, later, what is the skinny on Harriet Miers down in Texas?  We will talk to a Texas Supreme Court judge who is a close personal friend of the nominee.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Still ahead, what‘s the inside skinny from Texas on Harriet Miers?  HARDBALL returns after this.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL and back to my interview with Democratic National Committee Chairman Howard Dean. 

I asked Dr. Dean, the chairman of the party, about the CIA leak investigation and whether it endangers the vice president himself. 

(BEGIN VIDEOTAPE)

MATTHEWS:  If Patrick Fitzgerald, the special prosecutor, says that the vice president‘s office was involved in leaking the name of that CIA agent, do you believe—what do you think his status would be, the vice president, if his office was named to be involved in this?

DEAN:  Well, I think that depends on what kind of evidence there is, if that‘s true.  Obviously, the person, I think, who‘s indicted would have to step down immediately.  And then we‘d have to ask the question, was the vice president himself personally involved in this?  And that of course would extend the...

(CROSSTALK)

MATTHEWS:  Do you believe it‘s credible that the vice president‘s chief of staff, his office, his operation, were involved in such a scheme to hurt somebody like Joe Wilson, that he wasn‘t personally involved in his own office‘s activities?  Do you think it‘s credible?

(CROSSTALK)

DEAN:  Sure.  Well, I don‘t think it‘s very credible that he didn‘t know anything about it, because the M.O. of the Bush administration is to discredit your opponents and attack them personally...

MATTHEWS:  Right. 

DEAN:  ... rather than attack them for their position, which this is an example of.

These guys are bad for democracy.  They‘re not interested in ideas.  They‘re interested in power.  And, frankly, they‘re not very much interested in the best interests of the American people.  They‘re interested in the power for the right wing of the Republican Party, and that‘s why they‘ll be gone after 2006.

MATTHEWS:  Well, back that up, Dr. Dean.  What other examples can you point to—or any examples can you point to where the Republicans in power right now, in the White House or in Congress, have gone after somebody and tried to discredit them?

DEAN:  Oh, I think there are numbers of them, not just Valerie Plame, but look at what they did to John Kerry with the Swift Boat ads.   Certainly, they certainly tried to marginalize me during the presidential campaign.  I think they would have done that...

MATTHEWS:  Well, you helped a little, didn‘t you?

DEAN:  I don‘t really think so.  I think the press probably helped some.  But...

MATTHEWS:  I mean, the Dean scream was good material, like the ride in the tank was good material for the Republicans when they went after Mike Dukakis.

(CROSSTALK)

DEAN:  Well, as you know very well, based on Diane Sawyer‘s report on ABC, that didn‘t exactly happen the way it was shown on television 700 times that week.  But leaving that aside, I think it‘s very clear...

(CROSSTALK)

MATTHEWS:  I know.  It was a directed mike.  I understand the technology.

I‘ve got one last question, Dr. Dean.

DEAN:  Sure.

MATTHEWS:  One last question.  The price of gas, it‘s a huge issue, heating oil up in your part of the country.  You know it, as being governor.  It‘s a huge issue in New England.  It‘s going to be high heating bills this winter.  What can Democrats say that they would do if they were in power to reduce the price of heating oil this winter up in New England?

DEAN:  Well, you can‘t do anything to reduce the price of heating oil in New England.  You‘ve got to subsidize it and help poor people with their heating bills.

In the long term, we‘re going to see a new Democratic Party.  We need renewable energy; we need a balanced budget; we need to talk about the moral values of making sure that kids don‘t go to bed hungry or cold at night. 

MATTHEWS:  Right. 

DEAN:  And that‘s what‘s lacking on the Republican side, that, plus the culture of corruption that they‘ve brought to the statehouses and to Washington, D.C. is going to win us the election in 2006, I think.

MATTHEWS:  Should—should Democrats, Dr. Dean, drive SUVs?

(LAUGHTER)

MATTHEWS:  I mean it.

DEAN:  Well...

(CROSSTALK)

MATTHEWS:  They want to set an example.  Should they drive gas-guzzling SUVs, if they‘re going to be liberals?

DEAN:  I‘m not getting near that one.

MATTHEWS:  No?

DEAN:  No.

MATTHEWS:  They shouldn‘t drive them?

DEAN:  I‘m not even going to answer that question.  It‘s not up to me to tell people what kind of cars they ought to drive.

MATTHEWS:  OK, thank you.

DEAN:  And I don‘t think having—I don‘t think it‘s a moral imperative to drive a big car or a little car.

MATTHEWS:  OK.  Well, thank you for that libertarian view, Dr. Dean. 

(LAUGHTER)

MATTHEWS:  Thank you very much, the chairman of the Democratic National Committee, Howard Dean.  Thank you, sir.

DEAN:  Thanks, Chris.

(END VIDEOTAPE)

MATTHEWS:  Up next, the fight in the right.  Will conservatives shoot down the nomination of Harriet Miers to the Supreme Court? 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

Prominent conservatives continue to question the Supreme Court nomination of Harriet Miers today, despite President Bush‘s staunch defense of her of Tuesday . Among them criticizing the nomination, Republican Senator Trent Lott of Mississippi. 

(BEGIN VIDEO CLIP)

SEN. TRENT LOTT ®, MISSISSIPPI:  Is she qualified by her experience? 

Is she the most qualified person?  Clearly, the answer to that is no.  There are a lot more men, women and minorities, that are more qualified, in my opinion, by their experience than she is. 

(END VIDEO CLIP)

MATTHEWS:  Trent Lott.

And columnist George F. Will wrote that senators should be guided by three rules in examining this nomination: “First, it is not important that she be confirmed.  It might be very important that she not be.  Third, the presumption, perhaps rebuttable, it‘s certainly in need of rebutting, should be that her nomination is not a defensible exercise of presidential exercise, to which senatorial deference is due.”

Wow. 

Republican Senator Kay Bailey Hutchison of Texas supports the nomination of Harriet Miers. 

Senator, thank you for joining us.

It seems like there is a break between the philosophical conservatives and the party loyalists here. 

SEN. KAY BAILEY HUTCHISON ®, TEXAS:  Well, I‘m disappointed in some of the things that have been said, but I do believe that, when Harriet Miers has the opportunity to talk to people, that you will see that she is very bright, that she most certainly is qualified. 

Chris, five of the nine justices graduated from Harvard University, another one from Yale, another one from Columbia, I don‘t think you have to be from an Ivy League institution to be qualified for the Supreme Court.  Harriet Miers is very bright.  She has had practical experience and she has been a leader in the legal field in Texas, where she broke all the barriers. 

MATTHEWS:  That word, very bright, I sense a condescension there, Senator.  You wouldn‘t say that Stephen Breyer was very bright or that Scalia was very bright.  You would say, these guys have some legal brilliance going for them.  Do think she is in the same caliber intellectually as these other people?  Forget where she got her degree.

HUTCHISON:  Oh, I definitely do.

These are people who have had careers in being judges and academic type careers.  She has had a more practical, on-the-ground kind of background.  And I think you need that on the court.  I like having someone with some common sense who has been in the arena, who has had some political experience.  She has been a member of the city council.  But her legal credentials are impeccable. 

(CROSSTALK)

MATTHEWS:  But how many lawyers do you know who would you call intellectuals?  I know a lot of lawyers.  I would call maybe a few of them intellectuals.

But an active intellectual mind that studies constitutional history, that really tries to figure out the inherent rights within the Constitution, who understands these landmark decisions and has a real talent for grooming them and for nourishing them, has she spent any part of her life doing that?  And now she is being asked, at the age of 60, to devote all her mental energy to protecting the Constitution, having not done so before.  Isn‘t that odd? 

HUTCHISON:  Not at all.  Not at all. 

William Rehnquist had never sat on the bench, and he had been assistant attorney general.  Her—really, her background is much like his.  I think she, number one, did clerk for a federal judge early in her career.  I think a practicing lawyer absolutely deals with the Constitution and the laws in a practical way. 

And, third, I think being White House counsel and seeing the separation of powers, they are dealing with constitutional issues every day in that White House counsel‘s office.  I think she is absolutely coming from a different background, brings a diversity and is qualified, absolutely, for this court. 

MATTHEWS:  Here is the question.  She has worked in the White House now for five years, but only recently brought into the counsel‘s office.  She was deputy chief of staff and, before that, she was staff secretary, was in charge of the paper flow. 

If she is such a legal dynamite, why didn‘t the president ever ask her, her advice on all these court decisions, on these matters of—before the court, like partial-birth before?  Why didn‘t he call her into the office and say, what do you think about this partial-birth bill?  Should I sign it or not?

He never once sought her counsel.  Why should the country be guided by her thinking if the president, who had her working in the West Wing, never once called her in and said, what do you think about these issues?

HUTCHISON:  How do you know that he didn‘t? 

MATTHEWS:  Because she‘s denied it and they have denied it.  They have denied at the White House ever having conversations about these issues.  You can‘t have it both ways.  She is bright and brilliant and she understands these issues, but we have never talked about them.  Which is it? 

HUTCHISON:  Oh, I think you are reading more into that. 

MATTHEWS:  OK. 

(CROSSTALK)

MATTHEWS:  What am I misreading here, Senator?

HUTCHISON:  Well...

MATTHEWS:  Have I misread the fact that Senate—or the president and all the people in the White House have denied ever hearing her make an—offer an opinion about Roe v. Wade, a woman‘s right to choose an abortion?  Never had a conversation with her, that‘s what they are all saying. 

HUTCHISON:  I think that they said they talked with her about her opinions about abortion. 

But I think whether she is pro-abortion or pro-life is not really an issue anyway.  How she would rule on the court is not going to depend on her personal views.  She is a strict constructionist.  She believes that judges should not make law. 

MATTHEWS:  Right. 

HUTCHISON:  And I think, much like John Roberts, she is go to look at precedent very carefully and be very hesitant to overturn precedent unless it is warranted in some particular case and it has not been relied on.  I think she‘s going to be much like John Roberts in his view of the value of precedent. 

(CROSSTALK)

MATTHEWS:  Do you think the president relied upon her when he made his decision to sign the partial-birth abortion bill when she was on the White House staff?

HUTCHISON:  I do not know the answer to that question. 

HUTCHISON:  Do you think it‘s important that we know what her thinking is on that subject, or you do, since that is one the first issues to come up on the Supreme Court, once she is seated, if she is seated by Thanksgiving?

HUTCHISON:  If she thinks that the partial-birth abortion bill is constitutional?  Is that what you‘re asking?

MATTHEWS:  Yes. 

HUTCHISON:  Well, I‘m sure she is going to be asked that question. 

I don‘t know that she would give an opinion directly on something that might be decided.  But I think it‘s pretty clear that that is a constitutional exercise.  And I would not—I would certainly think that that can be asked in the hearings that she is going to have. 

MATTHEWS:  Yes. 

HUTCHISON:  But I don‘t think her personal view of abortion is the issue here.

MATTHEWS:  Oh, no, I didn‘t bring up her personal view.  I asked about her legal thinking. 

HUTCHISON:  Well, I think that‘s valid.

(CROSSTALK)

MATTHEWS:  This is the thing I‘m worried about.  This is what I think might happen.  It might be a real freak show. 

Suppose Joe Biden gets out there.  And I have watched him go grill these witnesses.  And you have watched this.  Suppose he asks her about 20 landmark cases in a row that he has been studying and that John Roberts was so skillful on, 20 landmark cases in a row.  He asks her about Brown case in ‘54, asks her about Roe.  He asks her about the constitutionality of the Civil Rights Bill of ‘64. 

He goes through every one of them.  And in every one of the cases, she said, well, you know, I haven‘t devoted my life to this.  I really don‘t have a fixed thought on that.  And he does that 20 in a row, and they put all the videotape together.  She will look like a numskull.        

HUTCHISON:  Well...

MATTHEWS:  And then what happens?

HUTCHISON:  Let‘s let her just—let‘s let her perform and go through the hearings.

But I don‘t think that some of those questions that were not really questions added to the mix in the John Roberts hearings.  I don‘t think having a monologue and then saying, now please give me short answers, is very enlightening either. 

So, I believe Harriet Miers will hold her own.  She is very bright.  She is qualified in a different way from the others on the bench.  And I think that‘s good. 

(CROSSTALK)

MATTHEWS:  Can she offer as a response to all those tough inquiries—and I admit some of them were long-winded—some of mine are obviously, too—but if you ask those questions, does she have the right to say, well, you know, I haven‘t devoted myself to the bench; I really don‘t have a fixed thought on those subjects?  Can she get away with that time after time if she‘s questioned? 

HUTCHISON:  Well, let me say that anyone probably that is sitting on the court today is not going to be as steeped as John Roberts was, because his life was appellate cases. 

MATTHEWS:  Yes. 

HUTCHISON:  His life was arguing.  So, he knew the Supreme Court precedents better than any nominee I ever seen. 

And I think that Harriet Miers will have a working knowledge of those.  She certainly is good on the constitutional issues and the things that she has worked with in her purview, not only as a lawyer in federal jurisdiction, but separation of powers and the rights of the president, rights of Congress. 

I think that she will have the ability to comport herself before this hearing that she is going to have very well.  I have every confidence.  Will she be the same as John Roberts?  No.  I don‘t think anyone would be. 

MATTHEWS:  Yes.  I agree with that.  He‘s very—he was brilliant. 

Let me ask you this, because this is not a concern that has been raised by the media or raised by the liberals in the United States Senate.  It seems like there this growing drumbeat, George F. Will, who most people count as an intellectual conservative, Trent Lott, who most people consider a classic Southern conservative, both raising questions within the last 24 hours. 

Now, listen to this one.  George Will, who is pretty careful in the way he writes—I think he writes a number of drafts before he comes out with his columns—“”First, it is not important that she be confirmed.  Second, it might be very important that she not be.”

What do you make of that? 

HUTCHISON:  Well, I think that the Republicans‘ treatment of nominees has, by and large, been that it is the president‘s choice, that elections do matter, and that advise and consent does not mean that we pick a candidate, nor that a candidate is of our philosophy. 

MATTHEWS:  Yes. 

HUTCHISON:  Certainly, I voted for Ruth Bader Ginsburg.  I would not agree with her in philosophy at all.  I thought she was qualified.  I thought she had the background for being a Supreme Court justice.  And she had the temperament. 

But I didn‘t agree with her philosophically.  That‘s the way Republicans have looked at this.  I think that George Will is taking the position that the president doesn‘t have the right, that elections don‘t matter. 

Now, I love George Will.  I think he is very bright, intellectual and very thoughtful.  And I wouldn‘t disagree with him 2 percent of the time.  But I think he went overboard on this.  And I don‘t think he has heard enough about Harriet Miers to say that we—it might be important that she not be confirmed.  Let‘s give her a chance. 

MATTHEWS:  So, your basic point is, they don‘t have to agree with you philosophically; they have to meet some minimum standard in terms of their preparation for the position? 

HUTCHISON:  And—yes, and integrity and honesty and leadership. 

MATTHEWS:  Right. 

HUTCHISON:  My lord, she was the first woman president of the state bar association.  She has been a leader in the legal field.  She is not a shrinking violet. 

She has been a leader.  She has broken barriers.  She is very well regarded as a lawyer in Texas.  And I think having practical experience is important. 

MATTHEWS:  Well, I wished he had picked you.

Anyway, thank you very much, Senator Kay Bailey Hutchison of Texas. 

Up next—you‘re no shrinking violet either.

Up next, can conservatives be sure of Harriet Miers‘ bona fides?  That‘s an interesting phrase.  I will ask a friend of Miers, Justice Nathan Hecht, who helped her become an evangelical Christian. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

While America continues to learn about Supreme Court nominee Harriet Miers from media reports, Nathan Hecht is a man who has known her on a personal level for the last 30 years.  He is a justice of the Texas Supreme Court. 

And he joins us from Austin, Texas, this evening to shed some personal light on who she really is, Harriet Miers.

Thank you for joining us, Justice.

We are also joined right now by Pat Buchanan. 

Let me ask you, Justice.  A lot of people are going to focus on this -

I‘m not the first one, nor the last—about her philosophy about life. 

Does she believe life begins at conception, according to conversations you had with her?  Is she a pro-lifer, in other words?

JUSTICE NATHAN HECHT, TEXAS SUPREME COURT:  She is pro-life.  And she has been a committed member of a mainstream conservative evangelical church for a long time whose position is pro-life as well. 

MATTHEWS:  How about on stem cell, which requires the destroying of that—that fertilized egg, the post-conceived egg?  Is she for—is she against that, federal funding of that? 

HECHT:  I can‘t tell you.  I don‘t recall ever discussing it with her, other than.... 

MATTHEWS:  Is that consistent with her thinking that life begins at conception; therefore, you shouldn‘t destroy life after conception in the embryo?

(CROSSTALK)

HECHT:  It would be consistent.  And I—I suspect that she is—supports President Bush‘s policy statements on it. 

MATTHEWS:  Yes. 

HECHT:  But we haven‘t talked about it. 

MATTHEWS:  Well, that‘s got to—if that‘s the case—and I‘m sure it will come up in questioning—the chairman of the Judiciary Committee will not like that position. 

But it isn‘t—and I think it‘s fair to say, it‘s not a constitutional question.  It‘s a policy question and a moral, theological question.

Let me ask you, Pat Buchanan, do you think that this woman is in trouble? 

PAT BUCHANAN, NBC POLITICAL ANALYST:  I don‘t think—I—let me say this, Chris.  I don‘t think her nomination is secure.  I don‘t think it‘s definite that she is going to go through. 

I think this woman—and let me say on her behalf, she is a gracious lady.  She‘s obviously a fine lawyer and a good person.  I don‘t contest that at all.

But I do not think the case has been made that she ought to be elevated to the tribunal in the world in the United States.  That case has not been made.  And she is going to have to make that case, Chris, before the Senate Judiciary Committee, or I think her nomination will be in trouble. 

MATTHEWS:  Justice Hecht, do you believe that—George Will, the columnist, and others have set a very high bar for this woman‘s performance before the Senate Judiciary Committee, by saying her justification for this position has yet to be proven, that the president‘s endorsement is not enough.

(CROSSTALK)

HECHT:  Well, she‘ll clear it.  I agree with that.  The president‘s endorsement is not enough. 

I agree with Pat.  A case has to be made.  But we are two days into this.  A case has been made in Texas for the last 30-plus years.  We think of her as a hero down here already.  And when the rest of the country finds out about that—and it will come out during this process and during the confirmation hearings—they will be more convinced that this is the right person for the job. 

MATTHEWS:  If she was—if she is the person of the president‘s level of stature that she has talked about, in other words, has a good judicial temperament, would fit in well as an associate justice on the Supreme Court, why did the president use her for the first four years in the White House not as a counsel, but as a person in charge of the paper shuffle, the person in charge of staff—the staff secretary‘s job, basically, is to move the paper around, then as deputy chief of staff.

It‘s only now that Gonzales moved on to A.G. that he put her in a position where she would use legal mind.  If her legal mind is sound and useful, why didn‘t he use it? 

HECHT:  Well, he did.  I mean, you mis...

(CROSSTALK)

MATTHEWS:  Not in the White House for four years.

HECHT:  Yes, he did. 

You misunderstand the staff secretary position.  It is not a paper shuffler.  It‘s not something that a clerk can do.  It—you are supposed to have input into the paper that‘s going through.  You are supposed to—that person reads those documents, contributes to them, makes sure that other people do.  The present staff secretary is Brett Kavanaugh...

MATTHEWS:  Yes. 

HECHT:  ... a nominee to the D.C. Circuit. 

MATTHEWS:  Well, the question is—it‘s one or the other, is what I‘m trying to get at.  If she mainly had a job as his legal adviser or talked about legal questions, constitutional questions like partial-birth abortion, which is going to come before the court almost immediately, then let‘s hear what those conversations were about. 

According to what we are getting out of the White House, she never was talked—the president and her never talked about these tricky questions of abortion rights or partial birth or those kinds of issues.  Which is it?  Did he seek her advice on those issues, and therefore we have some evidence of her thinking, or not? 

HECHT:  Well, I don‘t know what went on in the White House.

But I do know that the person who sits in the staff secretary‘s office and who sits as deputy chief of staff for policy is going to have input, generally, on the policy issues that are going to the president.  And from Harriet‘s perspective, being in those jobs...

MATTHEWS:  Yes. 

HECHT:  ... it‘s going to have a legal bent to it.

MATTHEWS:  That makes sense. 

HECHT:  She‘s going to be thinking...

(CROSSTALK)

MATTHEWS:  That makes sense, that she would use her training as an attorney.

I guess that opens up the question, what did she tell the president in terms of his decision to sign the partial-birth abortion bill?  Did she advise it and say it was constitutional or didn‘t? 

HECHT:  Well, I assume they will take the position that that‘s privileged. 

MATTHEWS:  Yes, I think they will. 

HECHT:  But I don‘t know.

MATTHEWS:  Let me ask you.  Karl Rove gave you the OK to begin giving interviews like this.  And we very much appreciate, Justice, you coming on, because no one else can talk about her from that Texas perspective, that longtime perspective.  Are you surprised Karl Rove has basically unleashed people to come out and talk about her, that they‘re not more careful about making sure there‘s less talked about her than more? 

HECHT:  You know, I really don‘t know the history on that.  And I don‘t know what their usual policies are. 

MATTHEWS:  Yes. 

HECHT:  But I‘m happy that people are, because I think there is going to be a pretty solid consensus of view from people talking about her. 

MATTHEWS:  Why did she—the president said something about her, which both of you can respond to.  I never heard this said about anybody in my life.  She won‘t change, as if that is some construct he has about her very being, that she will not change on philosophy or reading of the law.  What do you think that‘s based on, Justice? 

HECHT:  Well, I didn‘t—I didn‘t hear him—I didn‘t hear him to say that. 

What I heard the president to say was, she is not going to be pushed around, that she is not going to be pushed and pulled, tugged by how her views are received...

MATTHEWS:  Yes. 

HECHT:  ... whether she is getting pressure, whether—whether it‘s meeting with public approval, that she is going to be her own person and going to be independent. 

I didn‘t hear him say that she is not going to listen to reason, that she is not going to hear the arguments of both sides, that she is not going to make up her mind the way other judges do.

BUCHANAN:  Let me tell you what the problem is, Chris.  It is this.

This woman is 60 years old.  Thus, she has been mature since 1965 to 2005, 40 years of the greatest controversies, social, moral questions of our time, all of them going to the Supreme Court.  And the White House is saying, the good thing about her is, she has no paper trail.  That means she has never taken a public stand, written in defense of this side, stood up on that side, whereas we have, in their 40s now and 50s, a young vetted, blooded generation of young conservative scholars who argued in schools where they were outnumbered, who worked as clerks for great justices, who themselves went into the White House, went into the Justice Department, who then went on the federal bench, who now are in the appellate court.

They have been there 15 years. And there goes—and they are passed over. 

(CROSSTALK)

MATTHEWS:  Is that a fair—is that a fair knock, Justice Hecht?

(CROSSTALK)

BUCHANAN:  That is unfair.

MATTHEWS:  That she has not been engaged in the dialogue over these hot issues? 

HECHT:  Well, I mean, it‘s a real philosophical difference.

Do we want judges coming in with an agenda or do we want judges coming in that are going to have a judicial philosophy, but they haven‘t pre-decided the cases?  I think the latter.  I would question.  Look at Chief Justice Roberts.  He said, I‘m an idealist, not an ideologue.

MATTHEWS:  Right. 

(CROSSTALK)

HECHT:  I‘m not coming in with an agenda.

BUCHANAN:  Justice, he is not a blank slate. 

HECHT:  Well...

BUCHANAN:  The president has asked us to elevate a blank slate to the Supreme Court to sit opposite people like Roberts and Scalia, when we have outstanding jurists who have taken a stand, been cut and blooded for their beliefs. 

And so, I think this is why she has got to sell herself to the country, to the conservative movement and Republican Party.  And if she does not, Chris, I would urge conservatives to recommend a no-vote on this, if she does not persuade that committee that is she is Supreme Court material. 

HECHT:  Well, and...

(CROSSTALK)

MATTHEWS:  Justice, do you accept that advice, or you think she should stick to her guns of being nonpartisan and nonideological in her hearings? 

HECHT:  Well, I don‘t think they are—they are—I don‘t think they are inconsistent. 

But I think the president has not handed us a blank slate.  There is a lot written on it.  We just haven‘t read it yet.  She does have to make the case.  Pat is exactly right about that.  But she is going to, because those of us in Texas who know what the record is know that, as this process proceeds, it‘s going to come out.  And there will be a strong case for her. 

MATTHEWS:  OK, gentlemen.

It‘s great having you on, Justice.  You‘re a great, a very impressive guest to have on this program.  Thank you very much, Justice Nathan Hecht of the Supreme Court of Texas.

HECHT:  Thank you, Chris. 

Thanks, Pat.

(CROSSTALK)

MATTHEWS:  And Patrick J. Buchanan, who has expressed himself clearly.

Up next, political analyst Charlie Cook says the White House has lost its swagger.  He‘s coming here to talk about why the president lost it and how he can get it back.  Boy, prescriptions.

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, Senator Trent Lott says Harriet Miers is not the most qualified candidate for the job of the Supreme Court.  How will the right deal with her confirmation hearings?

HARDBALL returns after this.

(COMMERCIAL BREAK)

MATTHEWS:  Time now for our weekly “Hardballer” segment, where the most influential reporters and advocated play HARDBALL.

With his hard-core base not rallying around his Supreme Court nomination, are President Bush‘s conservative credentials in jeopardy?  Charlie Cook is the author of one of Washington‘s most influential publications—and it really is—“The Cook Report,” “The Cook Political Report.”  And John Fund is a columnist for “The Wall Street Journal”‘s OpinionJournal.com.

Is this nomination finished? 

JOHN FUND, COLUMNIST, “THE WALL STREET JOURNAL”:  No.  She will be confirmed.

MATTHEWS:  She will be confirmed?

FUND:  But there are a lot of unhappy people. 

MATTHEWS:  And what are they going to do about their unhappiness?

FUND:  I think most of are going to get over it.  But I think the president has got his nominee in the short run.  In the long run, I think he has broken some of the bonds of trust and faith with certain parts of the conservative... 

(CROSSTALK)

MATTHEWS:  Charlie, are we waiting?  Is it just a matter of time before we hear a conservative Republican senator say, I‘m not voting for this woman; she‘s not qualified?

CHARLIE COOK, EDITOR & PUBLISHER, “THE COOK POLITICAL REPORT”: 

Republican senators have to work with this president and this White House for another three years.

They are going to hold their noses or find some reason to vote for her.  But what I wonder about is, does this become the equivalent of when President Bush Sr. broke his “Read my lips, no new taxes” pledge and raised taxes, breaking bond with conservatives?

(CROSSTALK)

COOK:  I don‘t think it‘s going to be quite there.  But is it a half of that or a third of that?

FUND:  It can‘t be that, because you found out immediately that Bush was going to raise taxes back in ‘92.  You are going to have to wait, five, 10, 15 years to see if you‘re going to be really disappointed in Harriet Miers. 

MATTHEWS:  What is going to be the Bush legacy if—because you have got problems with the deficits growing all the time, so it‘s not going to be fiscal austerity or fiscal, what do you call it, doctrinaire fiscal policy.

FUND:  Although I think he has got some belated—some belated conversion going on right now.  If you saw his press conference, he finally has discovered that, gee, maybe you might be able to cut the budget. 

MATTHEWS:  So, you think he‘s going to cut back and become a conservative? 

FUND:  No.  But I think he has realized that the firestorm around his base, which voted for him in 2004 as a conservative, the firestorm in the grassroots is such he has got to respond to it.  That‘s what we heard yesterday at the news conference.

MATTHEWS:  Charlie, in states like Pennsylvania, where you have a rabid conservative, like Rick Santorum, running for reelection, is the president‘s failure to pick a real hard-core person, somebody that they really like and root for, going to hurt in getting that vote out next year? 

COOK:  Well, I think Santorum is going to play where—my guess is, he‘s going to play hurt.  You know, this is not somebody I would have picked.  I‘m supporting it.  But...

MATTHEWS:  Good soldier.

COOK:  Yes.  Yes.  I think he will be a good soldier.

(CROSSTALK)

MATTHEWS:  Does good soldier on the part of a senator excite the troops?

COOK:  He could play to the base.  And I don‘t think Santorum is going to have base problems.  I would say, maybe more of a place like Mike DeWine in Ohio, Senator Mike DeWine, where he doesn‘t have the strong support in the Republican base that a Rick Santorum does, that‘s where it‘s going to have a hard time. 

MATTHEWS:  OK, 11 million more people voted for Bush last time than the time before, because they went out there and they believed in his values and his decisiveness.  Does this—does this emblemize either his values or decisiveness, picking this person nobody ever heard of before?

FUND:  No.  And I think that...

(CROSSTALK)

MATTHEWS:  Isn‘t that a problem?

(CROSSTALK)

MATTHEWS:  Admit.  Play—say uncle.

(LAUGHTER)

FUND:  The biggest problem the Republicans have right now is, what reasons do Republicans have to turn out next year?

MATTHEWS:  Right. 

FUND:  Right now, their base is demoralized. 

MATTHEWS:  I know. 

You heard it from John Fund.

We will be back with Charlie Cook and John Fund.

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

(COMMERCIAL BREAK)

MATTHEWS:  We are back with Charlie Cook of “The National Journal” and “The Cook Report” and John Fund of OpinionJournal.com.

Gentlemen, maybe you can argue about this one.  I‘m looking at the latest sort of police blotter on this administration, DeLay, another couple counts on money laundering the other day, after a conspiracy charge, Frist, who has got to face the SEC on an investigation on inside trading. 

Safavian, this guy is head of all personnel at the White House, he‘s just pulled out, arrested from his job.  Now you have got a guy picked up for—who has just pled guilty to spying at the Defense Department. 

When do people say, this is the Grant administration? 

(LAUGHTER)

FUND:  They don‘t, Chris. 

MATTHEWS:  Why don‘t they?

FUND:  Ronald Reagan had a sleaze factor.  Bill Clinton had people like Web Hubbell, who—his number two guy at Justice, go to prison.  He had lots of other people.

MATTHEWS:  He brought them in with him, though.

(CROSSTALK)

FUND:  Well, the bottom line is, unless you are talking about inside the Oval Office, every administration... 

(CROSSTALK)

MATTHEWS:  OK.  Let me go to the next one.

The CIA case breaks next week, maybe.  We have got people discussed in all the reporting on this.  If any of those people are hit with an indictment or a very clear report, including the people in the vice president‘s office or the vice president, is that going to be the tipping point? 

COOK:  Second-term presidents have problems.  They just have problems coming out the yin-yang.  This is no different.  And that‘s...

(CROSSTALK)

MATTHEWS:  Well, maybe we should have a one-term limit for presidents. 

COOK:  Well, maybe you should, or just a six-year...

(CROSSTALK)

FUND:  I am favor of all term limits.

COOK:  But the thing about it is, that‘s one reason why these second-term, midterm elections are so deadly, is that so many bad things tend to happen right then and the base becomes demoralized.

(CROSSTALK)

MATTHEWS:  Let‘s try a logic question here.  Could it be because, if they happened in the first term, there wouldn‘t be a second term? 

COOK:  Maybe.  But I also think that arrogance sets in.  Hubris sets in.

MATTHEWS:  And second-rate staffers. 

COOK:  There‘s a dumbing down in the second term.

FUND:  It‘s clear that the White House, which was running on all eight cylinders the first term, is not running on all of those cylinders right now. 

MATTHEWS:  Does the president get more isolated from control of the government in a second term?

FUND:  Yes. 

Well, we have talked about this, the bubble.  He becomes isolated from everybody, because the president basically sees the same set of characters every day, other than going on the road and shaking hands.

MATTHEWS:  Does he even know these people? 

I doubt if—I mean, I will give—I, actually—like a lot of people, I like the president personally.  I just like meeting him and being around him sometimes.  And he is a very likable guy.  And I think he‘s a very honorable guy.

But, look, does he even know guys like Safavian.  Does he even know guys like Lawrence, Lawrence Franklin, who pled guilty to spying today? 

FUND:  No.

MATTHEWS:  These are like the second level.  Is he not in touch with the second level?  Is that his problem?

Michael Brown, I don‘t even know if he even met the guy before.  Is that the problem?  He is not penetrating beyond the Condi Rices into the bowels of the government? 

FUND:  Well, remember, Franklin was a career employee, so that doesn‘t even count.

MATTHEWS:  Yes.  Yes. 

COOK:  Yes, it may be a narrow circle, but let‘s turn this and go a different direction.

Name—other than the pick of John Roberts, name one thing this calendar year that really impressed the heck out of you out of this administration. 

MATTHEWS:  And he was so—he was so sterling.

COOK:  The execution, the discipline, the focus that got them reelected, that got them a majority of the vote last November has been absent this year.  You just haven‘t seen it. 

FUND:  Well, he did—he had a good energy bill.  He had a good trade bill, CAFTA.

MATTHEWS:  But he‘s talking about—yes.

COOK:  No, I‘m talking about an administration performance where they really did something.  I mean, the energy bill was... 

(CROSSTALK)

MATTHEWS:  Well, I will tell you, they have had a couple bloopers, like the way they sold Social Security as an ownership issue, when they should have sold it as a security issue.  This will secure your accounts.  People didn‘t want to gamble on ownership.  They wanted security.  And he said, we are taking security away from Social Security to give you a gamble on more money?  That wasn‘t smart. 

FUND:  No.  And the president has finally acknowledged that...

MATTHEWS:  It‘s dead.

FUND:  ... his Social Security initiative is moribund. 

MATTHEWS:  So, no good victories this year.  He is right. 

(CROSSTALK)

MATTHEWS:  Look him in the eye and say, you are right, Charlie.

(LAUGHTER)

FUND:  The only—the silver lining out of this is, this has happened early enough in the fifth year. 

MATTHEWS:  Yes. 

FUND:  It is a wakeup call, cold water in the face.  He can recover. 

MATTHEWS:  OK.  Let me ask you question.

You are a student of the right.  Do you think the president was sharp in his appointment of Harriet Miers? 

FUND:  No. 

MATTHEWS:  Was that a sharp decision?

FUND:  No.  It was a political blunder. 

MATTHEWS:  Charlie?

COOK:  Yes.  I think they avoided one problem, created another.  I think they could have done better than this.  I mean, anybody would look like a midget...

(CROSSTALK)

MATTHEWS:  I don‘t know why they bunted on two outs.

FUND:  Here‘s the biggest problem, Chris. 

MATTHEWS:  Yes. 

FUND:  The Democrats sense weakness now.  They think that they intimidated the White House.

MATTHEWS:  And that‘s why they are stepping back, because rMDNM_Napoleon said, stand back when your enemy is in the process of destroying himself.

Anyway, Charlie Cook, great having you.  Well, you know your stuff.

Fund, you know your stuff.

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

HARDBALL. 

Coming up next, “THE ABRAMS REPORT” with Dan.

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