updated 11/1/2005 12:00:12 PM ET 2005-11-01T17:00:12

Guests: Orrin Hatch, Ben Nelson, Jeffrey Wasserstein, Ralph Neas, Jan LaRue, Howard Dean

CHRIS MATTHEWS, HOST:  Tonight, here come the judges.  A new nominee for the Supreme Court, a big trial for Vice President Cheney‘s former chief of staff, in which Cheney himself will now be chief witness for the prosecution. 

At 8:00 this morning, President Bush nominated appellate justice Samuel Alito to the top bench.  Within 17 minutes, the Democrats began circulating a dirt sheet topped by the charts that Alito had embarrassed the government by failing to win a 1988 conviction against the Lucchese crime family. 

Meanwhile, Lewis “Scooter” Libby is set for arraignment this Thursday.  Will the vice president testify against his former staff chief or defy the prosecution‘s evidence?  Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews.  President Bush‘s base is pumped up today with the announcement of Supreme Court nominee Samuel Alito.  He‘s an Ivy League educated judge with extensive experience in the federal courts and conservative street cred.  In short, Alito‘s resume appears to make him the opposite of Harriet Miers, and that has conservatives singing in unison.  And prominent Democrats calling the pick divisive. 

It‘s a welcome wave of support from the right wing for the West Wing as the shadow of Scooter Libby‘s indictment in the CIA leak investigation continues to fall on this White House.  Libby is set to be arraigned this Thursday. 

Democratic National Committee Chairman, Howard Dean, will be here to discuss that and the Alito nomination and the tactics being used against this nomination.  We‘ll have the latest on the CIA leak investigation later in the show.  But first, to talk more about the nomination of Judge Alito, I‘m joined now by Senator Ben Nelson, Democrat from Nebraska, and Senator Orrin Hatch, Republican from Utah who sits on the Senate Judiciary Committee. 

Let me ask you, Senator Hatch, I know a lot of tactics are used to defeat these nominations.  The Democrats are circulating a hit sheet headed by the charge that Sam Alito, the president‘s nominee for associate justice of the Supreme Court, quote, “embarrassed the government by failing to obtain a crucial Mafia conviction back in ‘88.  He failed to convict the Lucchese family in New Jersey.” 

Why do you think they lead their attack on him with a charge involving the mob? 

SEN. ORRIN HATCH ®, UTAH:  I don‘t know.  But if you look at his career, and you look at his career as a judge, he‘s as tough on crime as anybody we‘ve ever seen. 

I don‘t know what happened in that case, but sometimes cases are difficult to prove. 

But let me just say this:  That‘s despicable conduct.  That‘s something that really hits below the belt.  It‘s something that shouldn‘t happen.  And frankly, I‘m very upset at any Democrat that would try and throw that kind of stuff around.  Alito really is a solid, brilliant jurist who is tough on crime. 

MATTHEWS:  This hit sheet ignores the fact that within a year he brought a major prosecution to conviction against the Genovese family, knocking down and putting the top guy in the rackets there.  And they gave him no credit for that, but yet they point to this acquittal as supposedly significant, as the top issue they raise on this hit sheet they are circulating today, the Democrats. 

HATCH:  That shows how hysterical some of the Democrats are. They are just shook up that the president has nominated a very, very topflight conservative, a man of brilliance and capacity who has worked in public service for over 30 years now and who has been on the federal bench on the 3rd Circuit Court of Appeals now for 15 years, doing a very good job.  One of the most respected judges in the country. 

So there‘s no excuse for that type of irresponsible behavior on the part of some Democrats.  I don‘t know who they, but I hope it‘s nobody in the Senate. 

MATTHEWS:  OK.  Let me go right now to Senator Nelson. 

What do you think about this attack by the Democrats, being circulated by the Democrats today?  They put it out within 17 minutes of the nomination this morning, attacking Judge Alito for not being tough enough on the rackets. 

SEN. BEN NELSON (D), NEBRASKA:  Well, I think that kind of attack just will speak for itself. 

But we do want to have a process that‘s both rigorous and fair, because it‘s a lifetime appointment.  We want to make sure we make no mistakes in putting people on the Supreme Court bench.  There will be those who will be overeager, those who will do the attacks.  There will be cheerleading and attack dogging, and we‘ve got to expect that.

But at the end of the day, as this unfolds, I think we‘ll find out more about Judge Alito and we‘ll be able to make an informed decision about whether or not he should sit on the Supreme Court bench. 

MATTHEWS:  Senator Hatch, why do you think this is a home run, this nomination? 

HATCH:  The president said that he would put people on the bench who are strict constructionists and literally will not enact laws from the bench but will interpret the laws as they should and leave the enactment of laws to the elected representatives of the people who have to stand for re-election. 

Well, he said he would do that.  Alito is a perfect illustration of a conservative jurist who basically believes that judges ought to be humble.  They ought to be temperate.  And they should not be enacting laws from the bench.  

And his whole career has been very much that type of a career. He‘s

done a terrific job.  He‘s a brilliant guy.  This is a Phi Beta Kappa at

Princeton.  He was editor of the law journal at Yale.  He has the best

credentials that you can possibly have

MATTHEWS:  Well, the state of Pennsylvania, the legislature and the governor, decided to pass a law that said a husband had to be consented, had to consent for a wife to have an abortion.  That was struck down by his court, but he voted with the minority.  He voted in dissent.  Do you think that was a reasonable vote on the part of Judge Alito? 

HATCH:  In that Planned Parenthood v. Casey case, it wasn‘t that the husband had to give his consent.  It was that Pennsylvania passed a law that said that the husband should be notified, that there was a spousal notification procedure.  The rest of the court went against that. 

And of course, he dissented, because he felt that that wasn‘t unreasonable law, to expect spouses to be able to give consent to a—or, not consent, but to be notified that the spouse is going to get—the other spouse is going to get an abortion. 

MATTHEWS:  Do you believe states should be allowed to pass laws requiring husband notification? 

HATCH:  Well, not anymore, because that‘s what Planned Parenthood v.  Casey says.  So, no.  And he lost in that particular case, but it was not a big, earth-shaking dissent. 

He affirmed the case in part and dissented that, yes, spousal notification was in the realm of reasonability and that still didn‘t prevent the woman from having an abortion.  It just meant she need to explain to her spouse or notify her spouse that she was going to. 

MATTHEWS:  Senator Nelson, what‘s your view on the judge‘s decision?  I‘m sure it will be the most salient vote he‘s taken or verdict he‘s rendered, in dissent in the case of husband notification in the Casey case.  Do you think that‘s going to hurt his nomination chances? 

NELSON:  I don‘t know.  From my standpoint, when I was governor, I helped get through the Nebraska legislature parental notification. I also a waiting period. 

I think the whole question will hinge on what level of judicial or what level of legislative measures can you put on this abortion and what requirements will be there. 

I don‘t know that that‘s going to hurt him, necessarily.  I think what we‘re going to want to know is does he want to be a judicial activist?  Does he want to legislate from the bench?  Or does he want to be someone who will make decisions? 

It‘s one thing to pass laws, which is a legislative prerogative. It‘s another thing for a judge to try to make them. 

In this case, I haven‘t read it yet, but I intend to.  But I‘m not sure he was trying to be a judicial activist.  I think he was simply recognizing the right of the state to put certainly limitations on abortion. 

MATTHEWS:  Doesn‘t the Supreme Court always make law?  Back in 1973, they said that a woman had a penumbra of privacy around her. That wasn‘t passed by any legislature of any state.  The idea of there‘s some notion of a penumbra of privacy, it came out of the Griswold case in Connecticut on  birth control pills and now it was adopted again in Roe v. Wade.   That is making law, isn‘t it?  No legislature ever said there was a penumbra of privacy in any law that I know about. 

NELSON:  Absolutely.  I think everybody has identified that.  The question is whether that‘s what ought to continue with the court. 

MATTHEWS:  Do you think that Roe v. Wade should be upheld or questioned? 

NELSON:  That‘s not—that‘s not a question for me at this point in time. 

I think what the judge needs to do is try to decide what is settled law.  And the court needs to try to determine what is settled law.  That‘s the way they ought to decide the cases. 

And any kind of judicial review at the appellate level can incidentally involve making law, but it ought not be the prerogative or the intent of anyone going to the bench to try to change the laws that exist today. 

Settled law has to be recognized and has to be dealt with.  But I think cases will come along, and there‘s no doubt that there will be some minimal changing of laws as they go forward.        That is going to be the question that will be presented to Judge Alito:  How do you view that?  And how will that affect not only the current situation we‘re talking about, privacy, but also in other areas of civil rights, et cetera. 

MATTHEWS:  Let me go to Senator Hatch on this question:  Do you believe it‘s important that the president apparently did not consult with Democrats? 

HATCH:  He consulted with Democrats. 

MATTHEWS:  Who did he talk to? 

HATCH:  When Harriet Miers came up, he consulted with over 70 senators. 

MATTHEWS:  How about this time?

HATCH:  And he asked them about the various people, you know, through his representatives up here, asked them about various people who might be on the bench. 

I know they discussed Alito with me and a wide variety of others.

And frankly, the president, he needed to move on this.  This is one of those situations where we‘re coming to the end of this session of Congress, and he had to move on it. 

But there will be a lot of consultation.  And I have to say, Democrats knew about Alito.  I predicted that it would be Alito last Thursday. 

MATTHEWS:  OK.  Harry Reid, the Democratic leader, said he wasn‘t consulted. 

HATCH:  You know, consultation to one person may not be consultation to another. 

But, be that as it may, the president has a right to nominate and we have a right to advise and consent.  I think the question is not whether the president slavishly consulted with Democrats or Republicans.  The question is Judge Alito a person who should sit on the United States Supreme Court? 

And by gosh, by all purposes and by all reason, he certainly is a person who qualifies for that court.

And by the way, he passed back in 1990 with Democrat support and Democrat praise as a fair, decent and honorable person.  He passed unanimously through the Senate.  He had the highest recommendation from the American Bar Association.  And I suspect that he‘ll pass through the Senate this time as well. 

MATTHEWS:  Thank you very much, Senator Orrin Hatch and Senator Ben Nelson.

Coming up, what can we expect to see if Samuel Alito is confirmed to the Supreme Court.

We‘re going to talk to a former clerk of his. 

And later, will the Alito nomination help put President Bush‘s second term back on track?  That‘s optimistic.  You‘re watching HARDBALL on MSNBC. 

(BEGIN VIDEO CLIP)     

JUDGE SAMUEL A. ALITO, U.S. SUPREME COURT NOMINEE:  Every time that I have entered a courtroom during the past 15 years, I have been mindful of the solemn responsibility that goes with service as a federal judge. 

Federal judges have the duty to interpret the constitution, and the laws faithfully and fairly, to protect the constitutional rights of all Americans. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Judge Alito is one of the most accomplished and respected judges in America.  And his long career in public service has given him an extraordinary breadth of experience.           

(END VIDEO CLIP)

MATTHEWS:  While we continue to learn more about the life and career of Judge Samuel Alito Jr., President Bush‘s latest nominee for the Supreme Court, it‘s always helpful to gain insight from people who know him personally.  And we got one here.

Jeffrey Wasserstein is an attorney who clerked for Judge Alito at the U.S. Court of Appeals for the 3rd Circuit in Philly in 1997. 

Thank you. 

JEFFREY WASSERSTEIN, FMR. JUDGE ALITO CLERK:  Welcome. It‘s a joy to be here.

MATTHEWS:  You were with him for a couple of years.  And what is it about his judicial manner and his way of looking at things?  Is he a strict constructionist, an original intent person?  Or how would you describe him? 

WASSERSTEIN:  Well, what I describe him as is a man who looks at the merits of each case without preconceived notions.  He does have this idea that a judge is supposed to be deciding cases, not making law, not making policy. 

So, he really tries to look at the facts of each case, look at the precedents underlying that type of case, and deciding it based on the merits of that case. 

MATTHEWS:  Does he believe in stare decisis? 

WASSERSTEIN:  We were—the judge as a lower court judge was bound by Supreme Court precedent and followed it. 

MATTHEWS:  But, as a Supreme Court associate justice, he would have the right to re-look at, if that‘s the right word, re-look at, reconsider, review previous judicial decisions of the people court. 

And will he? Or will he accept precedent like in Roe v. Wade? 

WASSERSTEIN:  We never specifically discussed that issue.  It was always—would have been somewhat presumptuous to say, judge, if you were a Supreme Court justice...

But, I think that what you see is his entire career shows respect for the law, respect for the Supreme Court. 

MATTHEWS:  For precedent? 

WASSERSTEIN:  I would say yes. 

MATTHEWS:  Does he believe in the right of privacy? 

WASSERSTEIN:  We never discussed that specifically. 

MATTHEWS:  Does he have views of any passionate amount on the issue of abortion rights? 

WASSERSTEIN:  We never discussed personal views.  We discussed case law.  We discussed issues that were rising before us, issues that had come up before the Supreme Court. 

MATTHEWS:  The Pennsylvania case required a judgment of whether a husband needed to be notified by a wife.  And he ruled that the state was within its rights, the governor and legislature, in passing a law and having it signed by the governor, that said the wife should notify the husband if she‘s about to get an abortion. 

WASSERSTEIN:  That‘s right.  He was following...

MATTHEWS:  He thought that was constitutional, but apparently the majority on that bench said it wasn‘t. 

WASSERSTEIN:  In his analysis, he was following Supreme Court precedent.  He applied Judge O‘Connor‘s unduly burdensome test, and just reached a different conclusion on, but one of the parts of the opinion. 

MATTHEWS:  I understand.  There is like the reflective consent going on in Pennsylvania.  I know that stuff. 

But, on the issue of whether a husband needs to be notified, he said that was not undue burden. 

WASSERSTEIN:  That‘s right.

MATTHEWS:  What about—I guess, the majority were concerned.  You had a beater husband, somebody who is rough and dangerous.  And you don‘t go to him, and say, I‘m going to get an abortion, knowing he didn‘t want to agree with you. 

He didn‘t agree with that.  And I think that‘s an interesting question, I don‘t know.

WASSERSTEIN:  It‘s an interesting question.  But, what he was doing was looking at what the Pennsylvania legislature did, what Supreme Court precedent had held up until that point. 

Because we didn‘t know at that point what Justice O‘Connor and the majority in Casey would have done. 

So, what he was doing was applying what he felt the Supreme Court would have done.  And he came out differently, but a substantial minority of the Supreme Court wound up agreeing with him on that. 

MATTHEWS:  Do you think he would—what position does he get in when he finds himself on a minority side or dissenting side of a judgment at the appellate level like that at the third circuit? 

And he believed that a husband should be notified.  The state had a right to require the wife to tell the husband.  Does he now revert to his original position or go along with the precedent here, and accept the laws as stated then? 

WASSERSTEIN:  He follows precedent.  He follows precedent.

MATTHEWS:  It‘s settled.  It‘s settled.

WASSERSTEIN:  I think you saw that in the partial-birth abortion case in New Jersey that came several years later.  I think in 2001. 

MATTHEWS:  Explain his judgment there. 

WASSERSTEIN:  He basically followed the Supreme Court case that had stated when partial birth abortion was permissible, and those decisions where it wasn‘t. 

He really—he did not create new law.  He was attempting to follow Supreme Court precedent.  If the Supreme Court said as they did in Casey, no, you‘re wrong.  The majority said, that in fact, the majority of the third circuit did.  He follows that. 

MATTHEWS:  What always knocks down the partial-birth abortion cause, which sounds good, because the whole procedure is pretty hard to take. 

And it involves, obviously, a very unlikely or unlikable thing that somebody would say, and I am putting lightly, is that the fact that the health of the mother has to be considered. 

And every time you say health of the mother, that becomes to some doctors a pretty much broad excuse.  The woman says, I don‘t feel right about having this baby, I have to have this procedure.  That breaks the ban right there. 

So, why did he think they had to have—why did he think that partial-birth abortion ban wasn‘t acceptable under the constitution on this case? 

WASSERSTEIN:  Well, he was following established Supreme Court precedent.  Again, this is a judge... 

MATTHEWS:  Was it the health of the mother issue? 

WASSERSTEIN:  I don‘t recall precisely.  But, what he looks at, he looks at the merits of each case.  He doesn‘t go in and say I‘m a pro-choice, I‘m a pro-life judge.

He‘s a judge.  He doesn‘t make law.  That‘s why he was basically trying to interpret what the Pennsylvania legislature had decided.  He was not trying to create new policy.  He was simply interpreting Supreme Court precedent in a way that three judges in the Supreme Court said that he had it correct.

MATTHEWS:  Great.  Thank you for coming on.  Jeffrey Wasserstein. 

Thank you.  Clerk for Judge Alito.

Up next, the man at the center of the CIA leak investigation speaks out.  Former ambassador Joe Wilson reacts to the indictment of Scooter Libby.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Vice President Dick Cheney‘s long-time chief of staff Scooter Libby resigned last week after being indicted in a CIA leak investigation.  He‘s scheduled to make his first court appearance this Thursday for an arraignment.  Meanwhile, the former ambassador whose criticism prompted the White House to smear him and his wife is now speaking out about the charges against Libby.  HARDBALL correspondent David Shuster reports. 

(BEGIN VIDEOTAPE)

JOE WILSON, FORMER AMBASSADOR:  Good morning, Katie. 

DAVID SHUSTER, NBC CORRESPONDENT (voice-over):  It was Joe Wilson, a former U.S. ambassador to Iraq and countries in Africa who in February of 2002 was sent by the CIA to investigate a claim that caught the attention by Vice President Cheney, a claim that Iraq was trying to buy uranium from Niger.  Wilson spent eight days there, and then said he reported back to the CIA the allegation was unfounded. 

And after the president‘s state of the union speech...

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa. 

SHUSTER:  ...it was Wilson who prompted a retraction when this op-ed accusing the White House of twisting intelligence.  Then, the administration came after his wife. 

WILSON:  My view of this is that the whole rationale for having attacked me as viciously as they did, and compromising Valerie‘s identity, was one, to scare other people, keep them from stepping forward about other bits of disinformation this administration might have put in the debate to justify the war.  And two, an act of pure revenge. 

SHUSTER:  Wilson‘s live interview this morning on “THE TODAY SHOW” was his first since Scooter Libby, the vice president‘s former chief of staff, was charged with lying about the case to investigators. 

WILSON:  It was a reaffirmation that in a country that is based upon the rule of law, our system of justice will work, and no man is above the law. 

SHUSTER:  The ongoing White House employment of one man, though, Karl Rove, infuriates Wilson.  The Libby indictment points out that Rove was the source of two leaks about Wilson‘s wife, one to “Time” magazine reporter Matthew Cooper, another to columnist Bob Novak. 

WILSON:  How he still has a national security clearance, how he still has a job in the West Wing of the White House is beyond me.  I think it shows a horrible lapse of judgment and ethical comportment. 

KATIE COURIC, TODAY SHOW:  Do you think he should step down?  Do you agree with Harry Reid.

WILSON:  I don‘t think he should be permitted to step down.  I think the president show fire him.  These are firing offenses.  These are not you are allowed to resign offenses, these are firing offenses. 

SHUSTER:  At the White House where press secretary Scott McClellan stated two years ago Rove was not involved, today... 

UNIDENTIFIED MALE:  You were wrong, weren‘t you? 

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY:  Again David, if I were going to get into commenting from this podium while this legal proceeding continues, I might be prejudicing the opportunity for there to be a fair and impartial trial.  And I‘m just not going to do that.

UNIDENTIFIED MALE:  Your credible and his credibility is not on criminal trial, but it may very well be on trial with the American public, don‘t you agree? 

MCCLELLAN:  No.  I‘m very confident in the relationship that we have in this room and the trust that has been established between us. 

UNIDENTIFIED MALE:  The year 2000, the president said the following, quote, “in my administration, we will ask not only what is legal, but what is right, not just what the lawyers allow, but what the public deserves.”  Doesn‘t the American public deserve some answers from this president about the role of his vice president in this story and what he knew and when he knew it and how he feels about the conduct of his administration? 

MCCLELLAN:  The American people deserve a White House that is committed to doing their work.  We are focused on the priorities of the American people. 

SHUSTER (on camera):  One of those priorities, of course, is keeping the American people safe.  The irony, as Joe Wilson noted today, is that his wife was helping the CIA track weapons of mass destruction. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster. 

David Gregory is NBC‘s chief White House correspondent.  It gets kind of hot in that briefing room, doesn‘t it, these days? 

DAVID GREGORY, NBC CORRESPONDENT:  It can and it does, certainly when it has to do with Scott McClellan‘s statements about these individuals not being involved in any way, shape, or form.  I mean, Scott is in a tough position, we understand that, because he‘s being told as are all White House employees, by the White House counsel, Harriet Miers, by the way, not to talk about any of this. 

But the reality is that he made a public statement about getting assurances directly from Karl Rove and Scooter Libby that they were not involved with any of this, and that was not the case.  Because even if it is not a crime, and we know that Scooter Libby has been accused of committed a crime of obstruction of justice and perjury, Karl Rove has not been accused of any crime, they were, indeed, involved in conversations about a covert officer of the CIA. 

And you don‘t have to believe me, that‘s what Special Prosecutor Fitzgerald said of her conduct—of her classification.  So that‘s the spot that he‘s in.  And it‘s a question of credibility.  And Scott said to us, look, you the members of the press corps know me, I‘m a credible guy.  That‘s true.  He has a sterling reputation.  But it‘s a question for the American people, you know.  It‘s a real question if you say something that turns out not to be true. 

MATTHEWS:  There‘s only two people, David, that all American people get to vote on: that‘s the president and vice president.  The president was very clear on this investigation to say that if there‘s any of my people involved in this leak, I‘ll take care of them.  How is he taking care of Karl Rove, now that we know he talked to two reporters, doing the very thing the president said they weren‘t involved in? 

GREGORY:  Well again, Rove has not been charged with a crime.  He remains under investigation.  His...

MATTHEWS:  But the president didn‘t set the bar at crime.  He said involved in this.  And if so, we‘ll take care of them.  We now on the record they were both involved in it. 

GREGORY:  Right.  To be fair, the president early on, his earliest statements were with regard to the leaking of classified information. 

MATTHEWS:  I see. 

GREGORY:  And, of course, that‘s the underlying crime.  So you could accuse him of being a very careful in his language. 

But, look, I think a lot of people would agree he wanted to get to the bottom of this.  And he may have very well tried to get to the bottom of it and concluded that nobody has done anything wrong, because after all, there are people who are close to Scooter Libby and the vice president (AUDIO GAP) maintain that refuting the charges of Joe Wilson was not a crime, was perfectly appropriate.  He called the vice president a liar and others liars, and that that‘s hardball politics in policy disputes. 

MATTHEWS:  David, the most amazing, exquisite irony of this is that if you look at the prosecution case laid out on Friday by Fitzgerald, he‘s going to name his case—build his case basically on the evidence he has from notes kept by Scooter Libby himself that he was notified about the identity of Valerie Wilson by the vice president. 

To lock the case, it seems to me, the star witness for the prosecution will be the vice president himself testifying against his chief of staff.

GREGORY:  It‘s a very important point and he will become a very important witness.  There are others within the administration who allegedly spoke to Scooter Libby about Valerie Plame‘s identity and her work at the CIA.

So, they all become really important, particularly because as Fitzgerald charges, Libby‘s defense is, I heard it all from reporters.

So, it‘s an important point and I think it goes to something else, which is, we know that the vice president was intimately involved in asking tough questions, as he said, about the intelligence, about Iraq and its nuclear program, it‘s weapons of mass destruction program. 

And we know that he was also involved at some level, we‘d like to know the full extent, in seeking to discredit those who would seek to discredit the administration. 

MATTHEWS:  Right. 

GREGORY:  So, I think that people would like a fuller picture of how all of that went on.  From my perspective, as a member of the press corps here, I‘m not making a judgment about that, because, again, I think there were those who would argue that they were simply fighting back against a critic of the war, and that‘s within their certain, certainly to do within the White House.

But, I think there are a lot of unanswered questions here.  We in the press room and elsewhere are trying to get at all of that. 

MATTHEWS:  Can the president and his press spokesman hide behind the ongoing criminal investigation and possible civil case that might follow here from Joe Wilson, to never give us a clear look at what happened? 

GREGORY:  I think they can.  I think they‘ll try.  I think they will certainly try until there is some outcome. 

Again, you can understand, in the case of Scott McClellan, he doesn‘t want to go forward and he‘s made very clear that he was given assurances.

You can read between the lines there and make it very clear.  He‘s the press secretary, he goes to these people, they say, oh, no, we‘re not involved and then he reports that back to us and the American people. 

Based on what he‘s already said, presumably he could already be a witness.  I think it‘s also a political calculation to say look, we‘re just not going to go there, and that puts him in a tough spot.

MATTHEWS:  He looks tormented, poor Scott McClellan.  I do feel sorry for him, even though I don‘t know how he knew those guys were telling the truth in the first place, enough to believe them.

Anyway, thank you very much, David Gregory. 

You‘re a tough guy and it‘s a tough job.  I hope you get through this thing. It is very interesting times. 

Up next, will Democrats filibuster the Supreme Court nomination of Samuel Alito? 

You‘re watching Hardball on MSNBC. 

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.

Jan LaRue is chief counsel for Concerned Women for America.  Ralph Neas is president of People for the American Way.

One is happy about the nomination of Judge Alito, the other is not. 

Thanks to you both for being here. 

Jan, why are you happy?  You‘re already smiling here. 

JAN LARUE, CHIEF COUNSEL, CONCERNED WOMEN FOR AMERICA:  I can‘t stop smiling, Chris.

This is judge‘s judge.  This is the one we‘ve been waiting for.  Everything about Judge Alito is outstanding, from his credentials, his experience and deep knowledge of constitutional law, man of character, integrity, judicial temperament. 

MATTHEWS:  Does this lock up the court for the conservatives?  Is this 5-4 now in posterity?

LARUE:  Well, we hope it gets to 5-4 our way, but give us four solid ones. 

MATTHEWS:  Except for Kennedy, you don‘t know. 

LARUE:  Kennedy is no, he‘s not solid. 

MATTHEWS:  He‘s the swing. 

Ralph, if this guy is confirmed, is it going to be 4, 4 and 1 on this court then?

RALPH NEAS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY:  Right now, we basically have, for the second time since the 1930s, an evenly divided court. 

It‘s about 4-4 right now, with Sandra Day O‘Connor leaving.  That‘s what makes this nomination so important, because of course Rehnquist was replaced with an arch conservative. If Alito goes on the court, he‘s in the mold of Thomas and Scalia. 

MATTHEWS:  But that still adds up to only four of the nine, doesn‘t it?

NEAS:  No, no.

MATTHEWS:  You‘ve got Thomas, you‘ve got Scalia, you‘ve got Roberts, and now you got this guy. 

NEAS:  As we said in our memo to you on July 1, Chris.

MATTHEWS:  Who‘s the fifth conservative?

NEAS:  You have Sandra Day O‘Connor being the fifth indecisive vote and about 20 decisions over the last five years protecting privacy, protecting reproductive rights.

MATTHEWS:  OK, but the numbers.  Everybody wants the numbers. 

Will this court be balanced if this guy‘s confirmed? Is it going to be four, four and one?

NEAS:  No, it will be 5-4 on a lot of issues, where O‘Connor was the fifth indecisive vote, protecting privacy and civil rights and the environment. 

On certain other issues, it will take one more vote for the right to have a clear-cut 5-4 vote.  But, this is one of the most important decisions the Senate will make. 

MATTHEWS:  I never thought Kennedy is a conservative. 

LARUE:  Absolutely not. 

NEAS:  No, he‘s the swing vote, along with O‘Connor. 

LARUE:  Yes, swinging to the left.

NEAS:  But on many swing votes he goes right and some he goes—

MATTHEWS:  Well, it still sounds like four, four and one.

Go ahead, Jan.

LARUE:  Clearly, this is still four solid conservatives at best, so all of this screaming about Roe v.  Wade going down immediately is utter nonsense.  It‘s not there. 

MATTHEWS:  When would you like it to go down?

LARUE:  I‘d like it to go down right away, but it‘s not going to happen.  We don‘t have any case challenging Roe on the merits on the court‘s docket.

MATTHEWS:  Just so everybody understands this fight. You would like the issue to go back to the states, right? 

LARUE:  Absolutely. 

MATTHEWS:  And if does go back to the states, what state are you from? 

LARUE:  I‘m from California and Illinois. 

MATTHEWS:  Would you like California to outlaw abortion? 

LARUE:  I think that‘s up to the people of California.

MATTHEWS:  But, would you like it? If you were voting out there? 

LARUE:  With a very narrow exception of the life of the woman, yes. 

MATTHEWS:  But basically, you want to outlaw abortion. 

LARUE:  Except for the life of the woman.  I want it left to the people, yes. 

MATTHEWS:  Serious injury is OK.

LARUE:  This is the way it was before. 

MATTHEWS:  In other words, health of the mother, not any excuse.

LARUE:  Health of the mother is far too broad under Doe v. Bolton, so if a woman‘s got a hang nail and wants an abortion, she can pretty much get one. 

MATTHEWS:  But if it‘s going to kill you, having a baby, shouldn‘t you be allowed to make a decision?

LARUE:  Oh, absolutely. That‘s what I said, the life of the woman.  In other words, when is there a serious risk of substantial bodily injury to the woman.

MATTHEWS:  Is that what this fight‘s about? The conservatives want to basically get rid of Roe v. Wade and take the issue back to the states.

Is that it? And then try to beat it there.

NEAS:  The most important question you can ask is that question. This is about two radically different and competing judicial philosophies.  Reproductive rights, abortion rights is one part of an overall judicial philosophy.  What Alito, and Scalia, and Thomas, and Bork, want to do is overturn dozens, scores of Supreme Court precedents going back to the 1930s. 

This is a titanic...

MATTHEWS:  You mean they want to get rid of to the Brown case, and go back to separate is equal? 

NEAS:  They want to redefine the commerce clause, the spending clause, the 14th Amendment. 

MATTHEWS:  If they redefine the commerce clause then we could get rid of the Civil Rights Act of ‘64. 

You say they are going that far? 

NEAS:  They could certainly weaken the ‘64 Civil Rights Act, but this is a judge... 

MATTHEWS:  Are you accusing the Republicans of wanting to get rid of the public accommodations law that protects the right of a minority to go into a restaurant? 

NEAS:  Of course not, of course not. 

(CROSSTALK)

LARUE:  Which Republicans supported and Democrats filibustered, by the way. 

MATTHEWS:  That‘s true.

NEAS:  But, I am accusing Republicans in certain Supreme Court nominees of wanting to weaken and undercut the remedies under the 1964 Civil Rights Act...

LARUE:  The ones that the left judges created. 

NEAS:  ...that were authorized by the commerce clause.

MATTHEWS:  What are going to be the main areas that you‘re going to use to go after Judge Alito? 

NEAS:  There‘s no question that we‘ll use civil rights, environment, religious liberty, reproductive rights, privacy. 

There‘s an extraordinary case that demonstrates the commerce clause issue.  Congress enacted a law which bans machine gun sales.  And believe it or not, the person who supposedly respects the legislature said, no, no, no, no, under the commerce clause you can‘t do that.

LARUE:  Total distortion.             

MATTHEWS:  Let‘s go to the Casey case.  And this is an issue that‘s going to be in the headlines tomorrow. 

Let‘s be honest, he voted basically to uphold that provision in the Pennsylvania law, which required notification by a woman to her husband if she‘s going to get an abortion.  Do you think that‘s appropriate? 

LARUE:  Well, he voted with the majority on three of the regulations. 

MATTHEWS:  But, on that submission...

LARUE:  But, on the spousal notification, he dissented. 

MATTHEWS:  He was a dissent.  You think that‘s something you support? 

The husband should be notified? 

LARUE:  Oh, absolutely, and so do most of the American people. 

MATTHEWS:  You believe a husband shouldn‘t have to be notified?

NEAS:  Of course not.  And so did the majority of the court, as bad as they were on that particular decision, and, of course, it would get nowhere with the Supreme Court. 

MATTHEWS:  So, you don‘t even like the 24-hour waiting period?

NEAS:  It depends, with respect to...

MATTHEWS:  What provisions don‘t you like in the Pennsylvania law? 

NEAS:  With respect to the Pennsylvania law?

No, I think the Supreme Court made it very clear that Casey went too far, for them to...

MATTHEWS:  You said you didn‘t like any of their rulings.

NEAS:  No, no, no.  I said with respect to the Casey decision on those four rulings, as with the Supreme Court, they said that they were inconsistent with the Roe versus Wade. 

Listen, the states have a right to abolish abortions, as you well know, in the last trimester except for when the health of the mother or the life of the mother is at stake. 

The middle three months they can have regulations with respect to abortion.  It‘s in the first three months that a woman has a constitutionally protected right to reproduction freedom. 

LARUE:  And that‘s entirely judge created, and judges have every right on the Supreme Court to revisit the issue, and decide, as Harry Blackman once said, when a prior ruling of this court is shown to be without any constitutional support, we have the duty to overrule it. 

And this is made up of whole cloth. 

MATTHEWS:  Excuse me.  I‘ve only got a minute.  I‘m sorry to push you. 

I‘m sorry. 

Are you happy that Democrats are circulating a hit sheet that nails this guy for failing to beat the Mafia in an 88‘ case, going back 17 years, even after a year later he was tough on the Genovese, and he won a big indictment, big conviction, against them, put three of those guys in jail. 

To go back to a case in 88‘ as their lead item on this hit sheet. 

What‘s this about? 

NEAS:  Chris, I have no idea.  You showed it to me just before the show started.

MATTHEWS:  Yes.  Because I just got it.

NEAS:  On the basis of what you shared with me, it‘s certainly seems like that might not be appropriate.  However, I really have not seen the facts underlying... 

(CROSSTALK)    

MATTHEWS:  Well, I‘ve got them.  I‘ll get you a Xerox of that. 

NEAS:  But, it‘s something I‘ll take a look at.

MATTHEWS:  It‘s pretty amazing.

LARUE:  Chris, it‘s desperation.  It‘s dirt.  It‘s distortion.  They don‘t want to deal with the merits of this nomination, looking at this man‘s true record, his qualifications, everything about him. 

He is made for the U.S. Supreme Court.  And the American people wanted the president to nominate someone just like him, and the president has done it. 

MATTHEWS:  Excuse me.  We‘ve got so little time. 

Is there going to be a filibuster here, Ralph? 

NEAS:  rMDNM_No, I think there is going be a bipartisan majority, as with the Bork nomination in 1987 that opposed this.  If necessary, however, if the votes aren‘t there for bipartisan majority to reject this nomination, then, I think, that the senators should have all appropriate parliamentary options, including the filibuster. 

MATTHEWS:  (INAUDIBLE)  OK. 

You think it‘s a tool you might use? 

NEAS:  Absolutely. 

LARUE:  It‘s political suicide, and there‘s not going to be any

bipartisan support for it.  They are going to lose if they try it.  The

American people won‘t tolerate it

MATTHEWS:  We‘ll see whether they tolerate it.

Anyway, thank you, Jan LaRue.  Thank you, LaRue.  Thank you Ralph Neas. 

When we return Democrats didn‘t take long to begin sniping at the nomination of Samuel Alito.  We‘ll ask DNC Chairman Howard Dean whether he thinks Alito should be confirmed. 

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Howard Dean is chairman of the Democratic National Committee. 

Thank you, sir, for coming in. 

I know this is unfortunate for you, but somebody in the Democratic party is putting out an attack sheet on this new justice nominee for the Supreme Court, Sam Alito. 

And the first attack is that he was lenient on the mob back in an 88‘ case.  He let the Lucchese family get off.  It says he was an embarrassment to the government.

And here is a guy that has been tough on crime.  Why start off on that issue? 

HOWARD DEAN, CHAIRMAN, DEMOCRATIC NATIONAL CMTE.:  Well, first of all, I didn‘t put it out, but somebody did, so I‘ll be responsible for it.

MATTHEWS:  Well, it was put out by Democrats, but go on. 

DEAN:  The president put out a sheet this morning, Republican talking points.  One of the things he said was that Judge Alito was a spectacular prosecutor. 

Well, it turns out he wasn‘t quite so spectacular, and he lost some important cases.  And one is which those guys, in that particular case, those guys all got off, 20 of them, without even putting up a defense witness.  So, at least in that particular case that‘s an example.

MATTHEWS:  What about the Genovese case the year later where he won the conviction and put three big guys away, including the top guy in New Jersey? 

DEAN:  I think it‘s great.  All I‘m trying to say is, you know, this guy is not the best prosecutor since sliced bread.  Look... 

MATTHEWS:  So, you don‘t sense a little ethnic aspect to this?  The fact that he is Italian-American.  They nailed the number one issue against this guy is mob, that he‘s weak on the mob.

You don‘t see that? 

DEAN:  No, I don‘t.

MATTHEWS:  I think everybody else does.  I see it.

DEAN:  I‘ll tell you what the number one issue is.  The number one issue, for me that I worry a lot about, is, first of all, we have a very weak president, who appears to be letting the right wing make judicial selections. 

Second of all, we have a president who didn‘t keep his word and fire Karl Rove as he promised he would two years ago when he said he would fire anybody who leaked.

Well, the special prosecutor identified official A, who leaked, and that was Karl Rove.  He may not be indicted, but what is going on is unethical. 

Third of all, I am concerned about Judge Alito‘s record.  Judge Alito in one case said he believed that Congress did not have the right to regulate the sale of machine guns.  I think that‘s a mistake.  Repeatedly...

MATTHEWS:  I thought they had done that since the ‘30s.  Tommy guns have been outlawed since the mob days back in the early ‘30s. 

DEAN:  In a case when he was on the court, he dissented from an opinion that upheld Congress‘ right to regulate machine guns.  In other words, he made the case, in a dissent, that he did not believe that Congress had the right to regulate the sales of machine guns. 

MATTHEWS:  Automatic weapons?  

DEAN:  Yes.  Machine guns. 

MATTHEWS:  Oh, I know.  I thought that was settled law. 

DEAN:  Well, it may have been settled law.  Judge Alito disagreed. 

Judge Alito also allowed a case or support of the police when they went in and searched somebody who they had a search warrant for, but then also searched the guy‘s wife—and strip-searched the guy‘s wife and a 10-year-old daughter.  I don‘t think that‘s a good thing.  There was some sex discrimination cases and disability discrimination cases where he raised impossibly high standards. 

So we do not think that Judge Alito is a great nominee. 

MATTHEWS:  What about the husband notification?  Does that bother you? 

DEAN:  It bothers me in the fact that the Bush people seem to insist on inserting the government into people‘s private family business.  And this is a private family matter, not a government matter.  To have the government insinuate itself in a relationship between husband and wife I think is a mistake. 

MATTHEWS:  But that was the Pennsylvania law, and that was passed by a governor, Democratic Governor Bob Casey...

DEAN:  I don‘t care who it was passed by.

MATTHEWS:  But it wasn‘t the Bush people.  You said the Bush people did it.

DEAN:  No, but this administration continually wants to insert themselves into family business.  The Terri Schiavo case, that‘s the family business, not the government‘s business.  All these abortion cases, that‘s a family‘s personal business.  That‘s not the government‘s business.  And we‘d like to keep the government out of people‘s private, personal lives. 

MATTHEWS:  But the Democratic Party are a pro-choice party, period? 

DEAN:  The government...

MATTHEWS:  The Democrats, your party, is a pro-choice party? 

DEAN:  No.  My party respects everybody‘s views, but my party firmly believes that the government should stay out of people‘s personal lives.

MATTHEWS:  But you are a pro-choice party?  Are you not?  You sound like you‘re against ever being pro-life.  Are you pro-choice?

DEAN:  I‘m not against people for being pro-life.  I actually was the first chairman who met for a long—for a long time with pro-life Democrats. 

MATTHEWS:  It‘s (INAUDIBLE) thing for people.  The people believe the Republican Party, because of its record, supports the pro-life position.  Does your party support the pro-choice position? 

DEAN:  The position we support is a woman has the right to make—and a family has the right to make up their own mind about their health care without government interference. 

MATTHEWS:  That‘s pro-choice.

DEAN:  A woman and a family have a right to make up their own minds about their health care without government interference.  That‘s our position.

MATTHEWS:  Why do you hesitate from the phrase pro-choice? 

DEAN:  Because I think it‘s often misused.  If you‘re pro-choice, it implies you‘re not pro-life.  That‘s not true.  There are a lot of pro-life Democrats.  We respect them, but we believe the government should...

MATTHEWS:  Do you believe in abortion rights? 

DEAN:  I believe that the government should stay out of the personal lives of families and women.  They should stay out of our lives.  That‘s what I believe. 

MATTHEWS:  I find it interesting that you have hesitated to say what the party has always stood for, which is a pro-choice position. 

DEAN:  The party believes the government does not belong in personal...

MATTHEWS:  (INAUDIBLE) learning things here about the hesitancy I didn‘t know about before.

We‘ll be right back with Howard Dean. 

DEAN:  You know what you‘re learning...

(CROSSTALK)

MATTHEWS:  Now, you‘re getting hesitant on the war and hesitant on abortion rights.  It‘s very hard to get clarity from your party. 

Anyway, by the way, Ken Mehlman, the Republican leader, is coming on tomorrow to join this discussion.  But I want to stay with the governor here.

A reminder, a political debate is ongoing on Hardblogger, our political blog Web site.  And you can download podcasts of HARDBALL like this one.  Just go to our Web site, hardball.msnbc.com. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Democratic Parpy—Party Chairman—Parpy Chairman Howard Dean.  Thank you, Governor Dean. 

On this leak case, do you think Scooter Libby was a rogue operating on his own? 

DEAN:  Yes, there‘s a big question about that, which I think is a serious question.  What did Vice President Cheney know and what did he authorize Scooter Libby to do?  In the indictment, the prosecutor talks about Libby having been the source of Scooter Libby‘s knowledge that ...

MATTHEWS:  Cheney being the source. 

DEAN:  Excuse me, I‘m sorry.  Vice President Cheney being the source of Libby‘s knowledge.  In that case, did they discuss that Libby was going to leak this? 

MATTHEWS:  And also, that he testified his—well, to the investigators, that his boss, the vice president, told him how to deal with this information after giving it to him...

DEAN:  Right.

MATTHEWS:  ... on July 12th.  He gave the information July—June 12th; a month later they go meet on the plane somewhere, he says, here‘s how to deal with it, how—and then after that, then he started giving it out. 

DEAN:  Well, I think...

MATTHEWS:  Libby.

DEAN:  ... this may reach higher.  This is not over yet. 

MATTHEWS:  Well, don‘t you think it already has, in your mind?  Don‘t you sense that...

DEAN:  Well, I think that most—it‘s reached into the president‘s office, because the president promised, first of all, five years ago, he promised it was going to be an ethical administration, which at this point is sort of a joke, given the vice president and everybody, all these, you know, Frist and DeLay, and their procurement officer Safavian, and all these people involved with scandals of all sorts.

But I think that this is a serious problem, because the president of the United States looked the American people in the eye and said if anybody was leaking, they would be dealt with, i.e. they would be fired.  Well, now we know.  Karl Rove hasn‘t been indicted for leaking, but he did leak, and that‘s in the indictment.  So, it seems to me that the question about whether Karl Rove leaked something or not is not at issue anymore.  The president promised he‘d fire a leaker. 

Karl Rove still has security clearance.  This is a guy with security clearance, who is a leaker. 

MATTHEWS:  Do you believe that the vice president confected the case for war?  WMD case, the nuclear case and...

DEAN:  Well, I don‘t know who did, but somebody did, because the case wasn‘t there, and the 9/11 Commission said it wasn‘t there.  The 9/11 Commission, chaired by a Republican, I might add, said there was no connection between terrorism and Saddam Hussein.  There was no evidence for WMDs.

Somebody either told the president the wrong information knowingly, or else the president knew the wrong information and lied to the American people. 

MATTHEWS:  How come 80 percent of your party is opposed to the war in Iraq, believes we shouldn‘t have gone, and the leadership continues to stick with the war?  John Kerry won‘t come out against the war, Chuck Schumer, Hillary Clinton, Bill Clinton.  They‘re all for (ph) war.

DEAN:  Look, first of all, when you say this, look, I was very much against the war as you know, because I suspected...

MATTHEWS:  You‘re with the 80 percent. 

DEAN:  I suspected we were also not being told the truth, which turns out, we weren‘t.  But I thought John Kerry‘s speech the other week was very good.  We‘re there now, and whether you know, I was on one side, John Kerry was on the other, whatever.  We‘re now in Iraq, and now we have to figure out how to get out, and Kerry has a plan to get out, which is more than the president...

MATTHEWS:  Let‘s go back and talk about how to get out of Iraq.  I‘d love that conversation. 

Thank you, Howard Dean, chairman of the Democratic National Committee.

Tomorrow on HARDBALL, Republican Party Chairman Ken Mehlman will be here.  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.

END   

Transcript

Watch Hardball with Chris Matthews each weeknight at 5 & 7 p.m. ET

Discuss:

Discussion comments

,