updated 11/1/2005 12:11:05 PM ET 2005-11-01T17:11:05

Guest: Amy Goodman, Mike Allen, Rachel Maddow, Max Kellerman

TUCKER CARLSON, HOST:  Thanks to you at home for sticking with THE SITUATION tonight.  We appreciate it.

Tonight, we‘ll tell you why Democrats are spooked by the latest Supreme Court nominee, why Dick Cheney might be scared silly, and how black magic is being used to beat the tax man. 

First up, a Halloween treat for conservatives, courtesy of this president.  Fifty-five-year-old Samuel Alito, a judge on the Third U.S.  Circuit Court of Appeals since 1990, is the latest choice to fill the Supreme Court seat vacated by Sandra Day O‘Connor. 

While previous nominee Harriet Miers was secretive about her stance on abortion, Alito‘s record on the bench seems to indicate he could oppose it. 

Alito‘s mother said today to reporters of her son, quote, “Of course he‘s against abortion.” 

We predict a fiery confirmation hearing, and that‘s not a stretch.  Here now to discuss the president‘s nominee, MSNBC political correspondent, one of our favorites, David Shuster, who joins me now live from our Washington bureau.  David, good night.  Happy Halloween. 

DAVID SHUSTER, FOX NEWS CORRESPONDENT:  Good to be with you. 

CARLSON:  What kind of reception did Alito get today on the Hill?

SHUSTER:  The Democrats seemed to be caught a little flat footed, in part because the Republicans were so unified.  And then you had moderate senators that some people would never listen to except in cases like this.  Arlen Specter seemed to go out of his way to try and protect Alito.  And even though Arlen Specter is a pro-choice Republican, I think that seemed to take the wind out of the sails out of people who were simply looking to try to brand Alito as some kind of extremist.  And as a result, you had some Democrats...

CARLSON:  Wait, so people—first of all, people are listening to Arlen Specter, which is really shocking to me and probably a bad idea in all cases.  Second, Democrats care what Arlen Specter thinks?

SHUSTER:  No, but I think what Arlen Specter, for example, gave the Democrats a little bit of cover by questioning the credentials of Harriet Miers.  It made it easier for the Democrats, especially the more moderate Democrats, to also criticize her. 

Here, you have the Republicans totally lockstep supporting Alito at this point, and as a result, the Democrats—you have some Democrats say, “Well, we‘re going to take a very serious look.”  You have some Democrats like Pat Leahy who call to be very divisive, but because the Democrats are a little bit disjointed, you compare that against the Republicans who are in lockstep, and it seems like Alito at least had a pretty good first day. 

CARLSON:  So what would it take for this nomination to fail, barring news we don‘t know about now?  These things always uncover things we didn‘t know, and I‘m sure this will be no different.  But let‘s say that doesn‘t happen.  What would it take for Alito not to make the Supreme Court?

SHUSTER:  I think the only thing it would take, barring news that we don‘t know about, I think it would take the Democrats, at least the moderate Democrats, being so pressured by the left wing, by the flank that‘s looking for a fight. 

I mean, clearly you‘ve got conservatives who are itching for a fight.  I think if the Democratic left wing is also now ready for battle and Ralph Neas is able to convince the moderate Democrats to go along, then I suppose maybe it gets a little more dicey, as far as whether the Democrats will try and mount a filibuster, and then the Republicans have to use the so-called nuclear option. 

But right now, I just don‘t see the votes as far as how the Democrats can hold their coalition together.  But you never know what‘s going to happen in one of these confirmation hearings. 

CARLSON:  This could be Bush‘s last shot, it seems to me.  I mean, I just think there‘s a real chance Republicans are going to lose at least one house in Congress in the upcoming elections, pretty much amongst them right now.

And so barring retirement between now and then, this is the last time Bush administration is going to have Republican majorities on the Hill to get their nominee through.  Are they putting everything behind this?

SHUSTER:  Well, it seems strange, Tucker, in the sense that clearly, the president had an awful week last week.  And what this has done, as you know, is it‘s energized the conservative base. 

And given how loudly conservatives have been pining for a pick like Alito, it seems like the Republicans, who may have wanted something that was a little less confrontational, they‘ve been drowned out by the glee that a lot of conservatives have.

And I think it just remains to be seen whether or not the moderates in both parties want to make this much of a fight or whether they will just be pushed aside by both wings, which are looking for a fight in this. 

CARLSON:  If there were to be Republican senators who defected, who would you expect they would be?  Who should we be looking at as sort of bellwethers?

SHUSTER:  Well, I mean, I think the usual suspects like Lincoln Chafee.  I mean, you might as well count him as a Democrat on something like this. 

But again, I think it‘s—I mean, I think it will be the Olympia Snowes of the world who may sort of dictate just how tough this is.  If you see a couple of moderate senators, such as her, maybe Arlen Specter, start to have some questions, they‘re not liking what they‘re hearing in the confirmation hearings, then I suppose it could get dicey.

But in the meantime, I think, Tucker, you‘re just going to see—you‘re going to see the extremes in both parties, who are itching for a fight, who are going to be yelling at each other, throwing all kinds of mud that they can.  But I don‘t think you‘re going to have many people in the center who are going to change sides or change positions. 

CARLSON:  All right.  Good.  I like a fight.  David Shuster, a great man to cover a fight.  Thanks a lot. 

SHUSTER:  Tucker, always great to be with you.  Happy Halloween. 

CARLSON:  Thanks.  Happy Halloween to you. 

Earlier today, Senate Minority Leader Harry Reid said, quote, “The Senate needs to find out if the man replacing Miers is too radical for the American people.”  Is Samuel Alito really a rebel with a cause?  Is he really radical?

Joining us live from New York tonight to answer that question, among others, Amy Goodman.  She‘s the author of the best seller, “The Exception to the Rulers: Exposing Oily Politicians, War Profiteers, and the Media Who Love Them.‘  She‘s also the host and executive producer of the news radio program, “Democracy Now.” 

Amy Goodman, thanks for joining me. 

AMY GOODMAN, AUTHOR, “THE EXCEPTION TO THE RULERS”:  It‘s good to be with you, Tucker. 

CARLSON:  Thanks. 

The president campaigned in this last election, which I know you followed quite closely, as someone who would appoint a Supreme Court justice in the mold of Clarence Thomas and Justice Scalia.  It looks like he‘s done that.  You can‘t be surprised. 

GOODMAN:  Well, I mean, I think that there was a pretty good consensus that he was going to replace Sandra Day O‘Connor with someone of like mind, and right now...

CARLSON:  Wait, wait, wait, a consensus among whom?

GOODMAN:  I mean, I think there was the expectation...

CARLSON:  By whom?

GOODMAN:  ... that—to be fair—well, I thought it was interesting how you introduced this, and I—talking about his mother, Judge Alito‘s mother.  And I do think mother knows best.  So her saying that, of course, he‘s against abortion is very significant.  I actually don‘t think that...

CARLSON:  Wait, wait.  Hold on.  I‘m sorry to stop you there.  I hate interrupting people.  Let‘s just go back to something you said a minute ago. 

There‘s an expectation, you said, that he would appoint someone like -

essentially a liberal Republican, like Sandra Day O‘Connor.  I guess my original point to you Bush was elected by the majority of Americans on the promise that he would do no such thing, that he would appoint, in fact, an open conservative like Justice Scalia.  So, again, I don‘t know where this expectation comes from, and how can you say you‘re surprised, because he said he was going to do it?

GOODMAN:  I didn‘t say I was surprised.  Nothing that George Bush does surprises me. 

CARLSON:  Liberals thought he should appoint a liberal, and he didn‘t. 

They can‘t really be mad, can they?

GOODMAN:  I think what matters here is what the Supreme Court is going to look like.  And that is what people are going to fight for on either side. 

Actually, I don‘t think people are disagreeing on what Judge Alito represents.  You have Operation Rescue saying that he will put the court on the fast track to derailing Roe v. Wade, and you have pro-choice groups like Planned Parenthood Federation of America completely agreeing and saying that they will fight this right to the end. 

CARLSON:  Right. 

GOODMAN:  There—in the cases of other people who have been put forward, it was not exactly clear where they stood.  I think it‘s very clear where Judge Alito stands, and the American people have to decide if he represents the mainstream of America. 

I mean, on the issue of choice, and there are other issues to discuss like, for example, in the death penalty, effectiveness of counsel, but on the issue of choice, most people in this country are for women‘s right to choose. 

CARLSON:  Well, that‘s—I don‘t think that‘s a completely honest characterization, but leaving that, let‘s not even get into the question of abortion. 

Just a second ago, you said, we know all this about Judge Alito.  We will know a lot about Judge Alito, but his nomination is, what, 12 hours old?  I mean, how much do we really know?  Not so much.  Everyone is getting press releases on e-mail and all that, but we don‘t have a deep understanding of his judicial philosophy.  We can‘t.

GOODMAN:  Tucker, he‘s not 12 hours old.  Yes, this nomination is, but he has a record, and there is a paper trail, and you can evaluate his record.  He has a right to his own opinions, of course, but now the process begins where you look at case by case where he has taken a stand.

And what‘s very interesting is, even with other conservative judges, people like, for example, Michael Chertoff, who is now head of the Department of Homeland Security, really rebuking him over—very much disagreeing with him over the issue of rubber stamping police powers around people‘s rights. 

This is of grave concern right now, when you have a mother with her two kids walking near a house that supposedly is a known drug location, and because they‘re in the vicinity, they...

CARLSON:  No—and that‘s of grave concern to me, too.  You know, that‘s very troubling.  I completely agree with you.

But let‘s get back to the process here, because we‘re going to have a lot of time to talk about what his beliefs are.  And I‘m not convinced we really know, but we will.  The process itself.  You host a show called “Democracy Now.”  You‘re in favor of democracy; so am I. 

Is it the most Democratic possible process that Judge Alito be voted on by the full Senate, which is, of course, voted on by the full country?  Isn‘t that what should happen?

GOODMAN:  It‘s interesting, Tucker.  I didn‘t know what your view is on Harriet Miers.  Did you feel that they should have been able to do up or down vote on her?

CARLSON:  Nobody prevented—nobody—nobody prevented in the Congress a vote on Harriet Miers.  Harriet Miers withdrew under pressure from the White House.  But the Senate didn‘t get in the way.  They were absolutely willing, as far—both sides were willing, as far as I could tell, to have a vote on her, which is how it ought to be. 

GOODMAN:  But I mean, I thought what was interesting was that conservative activists deeply cared about this issue, and they wanted her out.  And they weren‘t voting—waiting for any up or down vote. 

CARLSON:  They‘re not in the Congress.  And I‘m just asking you, as someone who‘s advocating a position on one side or the other, I never said that Harriet Miers should not be voted on.  I didn‘t feel that way.

But I‘m assuming that you think, as an advocate of democracy, that this guy, Judge Alito ought to be voted on by the people‘s representatives?  Right?

GOODMAN:  I think that there has to be full investigation of his views, and I‘m looking forward to really going through, hearing people on all sides talk about what his views are. 

I don‘t actually hear much dissent right now or disagreement over what he represents.  It‘s just a matter of whether he represents the majority views of people in this country, or is he so outside the mainstream that he would take it down a path—well, Operation Rescue said it very well. 

CARLSON:  But who cares what they say?  They‘re an interest group. 

They‘re not involved in this.  I want to ask you what you think, however. 

And isn‘t the best way to determine what the majority of people in this country believe is put this man and his beliefs to a vote of the representatives the whole country voted on, the Senate?  Isn‘t that the whole reason we have representative government, so they can speak for us?  Why not let them in this case?  Why short-circuit it?

GOODMAN:  If only the senators of this country actually spoke for the people of this country.  Look at what it—when it comes to war, no, unfortunately, Democrats often join with Republicans in icing out dissent and not representing most people‘s views.  We just passed the 2,000 soldier mark, and that‘s not just pro-war Republicans‘ problem.  That‘s also pro-war Democrats‘ problem. 

CARLSON:  Certainly.  Thank you for pointing that out, by the way. 

GOODMAN:  Right.  So if only senators represented most people‘s views. 

CARLSON:  It‘s the best we have.  It‘s better than anyone else has, and you can still vote them out if you want to, and some of them deserve it.  And I hope they—I hope you do vote them out. 

Amy Goodman, thanks for joining us.  I appreciate it.

GOODMAN:  Thank you. 

CARLSON:  Still to come, could presidential aide Karl Rove leave the side of President Bush?  Discuss the possibility of major reshuffling in the White House after the break. 

Plus, could that reshuffling include Condoleezza Rice replacing Vice President Dick Cheney?  People are saying it, believe it or not.  We‘ll break it down when we come back.

(COMMERCIAL BREAK)

CARLSON:  Still to come, Halloween treat for witches.  Even the wicked could use a tax break once in awhile. 

Plus, school officials force kids to wash their hands before eating

lunch?   A sanitary situation.  We‘ll debate it next.  Stay with us. 

                (COMMERCIAL BREAK)

                (BEGIN VIDEO CLIP)

                JOE WILSON, FORMER U.S. AMBASSADOR:  I don‘t think he should be

permitted to step down; I think the president should fire him.  These are firing offenses.  These are not you are allowed to resign offenses.  These are firing offenses.  This is the national security of the country we‘re talking about. 

(END VIDEO CLIP)

CARLSON:  Welcome back.  That was former ambassador, and noted blowhard, Joe Wilson, call for the president‘s top aide, Karl Rove, to be canned.  And he‘s not alone.  Democrats, even some Republicans urging President Bush to shake up his staff after prosecutors traced the leak of a CIA officer‘s name, Wilson‘s wife, of course, to the White House. 

Joining me now from Washington with the latest, “TIME” magazine White House correspondent Mike Allen, the most wired man in the nation‘s capitol. 

Mike, thanks for joining me. 

MIKE ALLEN, WHITE HOUSE CORRESPONDENT, “TIME” MAGAZINE:  Happy haunting, Tucker. 

CARLSON:  Thank you. 

You had a very smart piece, have a very smart piece in your magazine online right now, that you lead with by saying, why would anyone want to run for a second term?  They always end up badly.  You‘re totally right.  What kind of damage do you think this Scooter Libby indictment has caused the White House?

ALLEN:  Well, it‘s not clear yet, but it‘s—it has given some impetus to people who wish that the president would make some changes. 

Now Tucker, one thing I can guarantee you: if the president moves bodies around, it‘s not going to be because Joe Wilson tells him to.  But I think it is possible that over the next few weeks and months, we will see some changes.  People say they‘ll be gradual.  They don‘t want to portray panic, because they‘re not panicked. 

But January, February, the chief of staff, Andy Card, will have served longer in that position than anyone has.  Maybe that will be a convenient time for him to do something in the private sector or go on, be treasury secretary. 

Other collateral damage, in the “Weekly Standard” this week, Steve Hayes points out the opportunity costs, things that the administration didn‘t do just because of this investigation.  He reports that they censored themselves in presidential speeches, just because of the scrutiny that came from this investigation.

And the third collateral damage, you can‘t forget to mention poor Scott McClellan, who is going to be asked day in and day out about his credibility.  The White House counsel‘s office now has told him that he‘s not supposed to answer questions about it.  Before they blamed it on Fitzgerald.  Now he says he can‘t answer any questions.  And you just got a glimmer how Scott feels, when he said today, “Whether or not that puts me in an awkward position is another matter.” 

CARLSON:  It‘s—you know, I have to say, the one thing the Clinton administration did a lot better than this one does, is press.  This guy just seems over his head.  And it‘s pathetic.  It‘s sad.  It‘s cringe making to watch it.  I can‘t even stand to watch it. 

You said that this is going to bring about changes.  What about in your life?  What about in the lives of people who report on this administration, on the government in general, reporters?  I mean, it‘s got to affect your job, the precedence this is setting?

ALLEN:  Yes, and this is an administration that wasn‘t very open as it was.  Now, officials possibly will see that there‘s bad consequences for talking to reporters. 

Now, in his indictment and his press conference, the prosecutor, Patrick Fitzgerald, was—spelled out very plainly that the crime that is alleged to have occurred here did not have to do with talking to a reporter.  It had to do with talking to grand jurors, and FBI agents, and not telling a consistent or complete story, according to the prosecutor. 

CARLSON:  Now this is—I mean, the questions—I brought this up so many times, and I hate to be repetitive.  But I—this question is gnawing at me.  And that is the obvious one: how could Scooter Libby, if he did what he‘s accused of doing, and there‘s some evidence that he did, how could he have been so dumb?  How could this reputedly and apparently brilliant guy, have done something so foolish.  This is like robbing a liquor store kind of crime.  It‘s just so dumb.  How could this happen?

ALLEN:  Right, Tucker.  Reminds me of what NASCAR announcers always ask after the guys after they hit the wall: what was you thinking?  And it‘s just for that reason that a lot of people think that there‘s more to the story that‘s not come out.  Tucker, I know it‘s your position that there‘s something big that we may not know, that perhaps Scooter is covering up for someone else.  And because of that... 

CARLSON:  Feels like there has to be.  Don‘t you think?

ALLEN:  Tucker, after I heard you say that, I went through and read the indictment again, and the most—perhaps the most tantalizing sentence is sentence 22 in a, coincidentally, 22-page indictment. 

And that‘s where they talk about how on a plane trip back from Norfolk, Scooter Libby talked with the vice president and others about how to respond to press calls about this, including one from my colleague, “TIME” magazine‘s Matt Cooper. 

Now, the content of that conversation obviously is one of the most potentially interesting things that could come out of a trial. 

Now, I talked to some people around the vice president, and they say that this could not have been a cover-up, because it was so lame, that the vice president would not have wanted this, because it was not effective. 

And again and again, the reason that people who know Mr. Libby are puzzled by this is that, as you know, he was so careful.  He was someone that, like Vice President Cheney, didn‘t think that affairs of state should be discussed with commoners. 

And so he would normally blow off questions about either even routine matters of foreign policy, by saying, “Well, I don‘t know about that, or whatever.” 

Now he has a case where, if the facts are as they‘re laid out simply in the indictment, as one person said to me, “He‘s either a liar or an idiot.”  Not mutually exclusive, but what people say is there‘s some part of this that‘s not come out.  There is another side of this.  It‘s not clear. 

Mr. Libby‘s lawyer hinted at the fact that faltered memory will be a part of it.  I think he‘s going to talk about the context of what else was going on, and people in the grand jury said it was sometimes confusing, that you weren‘t—you didn‘t see the documents in advance.  You didn‘t always know what the time line was.  You were shown papers you hadn‘t seen in months or years, and so for that reason, perhaps he got confused.

CARLSON:  Yes.

ALLEN:  But sure hard to see as you read that indictment. 

CARLSON:  It‘s sure hard to see.  It‘s possible.  It‘s understandable for getting a conversation or two or three, but seven?  Scooter Libby, this guy with this famously steel trap mind?  I don‘t buy it for a second. 

Mike Allen, really one of the great reporters from Washington, thanks a lot for joining us. 

ALLEN:  Trick-or-treat, Tucker. 

CARLSON:  Thanks.  Trick-or-treat. 

Still ahead, President Bush is confident his second choice is the charm.  Democrats are promising a fight over the man they call Scalia in sheep‘s clothing.  A fair comparison?  More when THE SITUATION continues. 

(COMMERCIAL BREAK)

(BEGIN VIDEOTAPE)

DAVID GREGORY, NBC NEWS CORRESPONDENT:  You were wrong, weren‘t you?

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY:  Again, David, if I were 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.  I know very...

GREGORY:  You speak for the president.  Your credibility 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. 

TERRY MORAN, ABC NEWS CORRESPONDENT:  What I can‘t do is carry your water for you.  And I wonder...

MCCLELLAN:  I‘m not asking you to. 

MORAN:  Yes, you are. 

MCCLELLAN:  I‘m just asking you to speak to who I am, and you know who I am. 

MORAN:  There has been a wound to your credibility here.  A falsehood wittingly or unwittingly was told from this podium.  Does that make it impossible for you to do your job with as much credibility as that podium demands?

MCCLELLAN:  No, not at all because of the relationship that we‘ve built between me and the press corps, and I think that I‘ve earned with the American people, too. 

(END VIDEOTAPE)

CARLSON:  Welcome back.  That was White House press secretary Scott McClellan, a spokesman, getting into it with the White House press corps today.  Joining us now for analysis, Rachel Maddow, of Air America Radio. 

RACHEL MADDOW, AIR AMERICA RADIO:  Hi, Tucker. 

CARLSON:  Rachel. 

MADDOW:  I think he‘s more the Baghdad Bob at the White House. 

CARLSON:  I actually really like him.  He‘s famous for getting beaten up, and just kind of sitting there and taking it.  I mean, it‘s ridiculous.  Can the president look at that every day on TV and say he‘s doing a good job, speaking for me?

MADDOW:  Can Scott McClellan look at that tape every day and say, “This is the right job.  I‘d rather be doing this than on a paper route.”  I mean, come on.  He‘s got to go. 

CARLSON:  And he‘s a sweet guy.  That‘s the saddest part of it.

MADDOW:  He‘s just been put in a situation where he needs to go. 

CARLSON:  I couldn‘t agree more. 

Now, Judge Alito, who we should point out did not preside over the O.J. Simpson trial. 

MADDOW:  Ito, Alito.

CARLSON:  OK.  My dumb joke for the day.  All right.  But here‘s my question.  So Democrats on the Hill were actually kind of for Harriet Miers.  They lamented her resignation.  When she pulled out...      

MADDOW:  Democrats took a pass on the Miers debate. 

CARLSON:  They did.  They did. 

MADDOW:  Republicans did it themselves. 

CARLSON:  That‘s true. 

But when she withdrew her nomination, you heard a lot of them say, “Oh, it‘s—what a shame she did this.  She shouldn‘t have done that.”  I mean, Harry Reid went on and on and on about it. 

Now they are looking at a guy, Judge Alito, who‘s been on the federal bench, at the appellate level, 15 years who‘s got this impeccable resume—you can‘t even argue with it—who was approved unanimously twice by the United States Senate.  And they‘re totally against him on day one. 

So in other words, they‘re more for Harriet Miers, totally unqualified, than they are for Judge Samuel Alito, who‘s totally qualified.  They are choosing the unqualified nominee.  What is—talk about low standards. 

MADDOW:  Totally false comparison and total false characterization of what the Democrats have done. 

As we said, the Democrats stayed out of the Miers debate, right, largely because it was between the Republicans in the center and the Republicans on the right.  And they fought it out, and the right had that argument. 

When Miers withdrew, Democrats said was, “Wow, the far right has a lot of sway on the Republican Party.  They didn‘t even let her come to a hearing.” 

CARLSON:  That‘s totally not true.  I read all the press releases we saw from Dianne Feinstein, from Barbara Boxer.  “They were mean to her because she was a woman.  Ooh, sexism.”  I mean, they sound like the White House.  You know what I mean?

MADDOW:  Are you lamenting that Miers did not get a hearing?  Should she have gotten all the way to they hearings?

CARLSON:  I didn‘t really care one way or the other.  I‘m against it, when Congress, whose job it is to vote on things, to sort of, you know, come and weigh in on the issues of the day, when they take a pass on it, it bothers me.  I definitely didn‘t want her to be on the Supreme Court, and I‘m glad she‘s not going to be.

But, no, look, that—talk about—I think that‘s just not a good comparison.  The attacks today were ideological in part, which I welcome, and I think is good.  I would love to have a real debate in this country about abortion.  People are, we talk about abortion.  No, we never have a debate about abortion or gun control, or affirmative action.  I love it when people actually engage.

Then you saw a bunch of Democrats, Harry Reid, John Kerry, bunch of liberal interest groups say they‘re upset because he was a white man.  Come on. 

MADDOW:  Well, no.  Listen, he had three opportunities to appoint the first Hispanic to the Supreme Court.  President Bush passed all those opportunities.  He‘s now going to bring the number of—going to try to bring the number of women on the court from two down to one.  There are diversity considerations for those of us who care about them.  And I know that you don‘t care about that. 

CARLSON:  That‘s true. 

MADDOW:  Listen, the situation here that we have to consider is whether this guy is not a bad person or not.  It‘s not whether he‘s been a scoundrel all his life.  It‘s whether he is way outside the mainstream of American politics.  And that needs to be debated.  I think he is. 

CARLSON:  But the Senate is the perfect instrument, as I was trying to explain to Amy Goodman, with very limited success, to decide what is inside or outside the, quote, “mainstream,” because the Senate is by definition mainstream, because it is chosen by all of us.  OK?  It is our instrument.  It‘s—they‘re our representatives. 

MADDOW:  But the way...

CARLSON:  So that‘s how we decide, by a vote of our representatives. 

MADDOW:  The way we assess Harriet Miers‘ nomination had nothing to do with the vote.  It never got that far.  The interest groups and the press and the public weighed in on Harriet Miers, considered her record, decided what we thought her, and the right yanked her off the stage before she even got... 

CARLSON:  The right, unfortunately...

MADDOW:  That may happen again with Alito.

CARLSON:  The right, unfortunately, is not in control of the country.  I say unfortunately, a very sort of moderate to liberal administration is, and they, for whatever reason, they understood what a lousy choice she was. 

MADDOW:  Well, they are the ones who controlled this Supreme Court nominee.  And that‘s why he‘s to the right of the country. 

CARLSON:  Now, very, very quickly, Cheney.  You‘ll have to confess that all those weeks you were talking about treason, treason was committed.  There‘s no charge here that points to treason. 

MADDOW:  We don‘t know what the charges are going to be yet.  They‘re not out of the woods. 

CARLSON:  OK. 

MADDOW:  We don‘t know yet.  I told you.  I sold my car, because I‘m expecting to get yours, from when this indictment comes out. 

Listen we don‘t—I think that really we‘re not out of the woods. 

Because Libby gets arraigned on Thursday. 

CARLSON:  Right.

MADDOW:  If he goes on trial in open court, what are they going to be talking about: what happens in Dick Cheney‘s office?

CARLSON:  Right.

MADDOW:  This is really not going to be a great situation for them.  Bush really has to consider whether he‘s going to fire Karl Rove.  He said he‘d kick anybody out of his administration who was involved in this.  Now we know that he was “official A.”  White House is confirming that.  He was involved.  You‘ve got to keep your word. 

Plus, Cheney is appointing the guy who wrote the torture memo to take the place of Scooter Libby in his office. 

CARLSON:  Which is incredibly—you wonder how decisions like these are made.  I mean, Dick Cheney, like Scooter Libby, very smart guy.  I‘m sure both much smarter than I am.  But appointing—replacing Scooter Libby with the guy who wrote the torture memos...

MADDOW:  David Addington.  It‘s what he‘s known for.

CARLSON:  I hate to agree with you on this one question, but I strongly do.  I don‘t understand how they could have done that.  Sometimes you just wonder, maybe they ought to make some calls before making statements like that, or decisions. 

MADDOW:  Or maybe they ought to consider how this is going to look. 

CARLSON:  Yes, I couldn‘t agree more.  Rachel Maddow, thank you very much. 

MADDOW:  Thank you. 

MADDOW:  Still ahead on THE SITUATION, typically the debate is over tax breaks for the rich, but how about tax breaks for a witch?  That‘s right, brooms and caldrons are now tax deductible.  Demented but true.  We‘ll explain next.

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  The great Muhammad Ali once said, “I don‘t always know what I am talking about, but I know I‘m right.”  A sentiment that might be echoed by the man we like to call the Outsider.  Joining me now in the rhetorical ring, ESPN Radio and HBO boxing host, Max Kellerman, live from Las Vegas tonight. 

MAX KELLERMAN, ESPN RADIO:  You hit me where I live, Tucker.  The Ali quote, you hit me right where I live. 

CARLSON:  You know, and I think—you know, sometimes we just attribute these quotes to either Disraeli or Muhammad Ali. 

KELLERMAN:  Right, make up a quote and attribute that someone that.... 

CARLSON:  No one ever challenges it. 

Well, we begin tonight with what may be hands down the dumbest bill to come out of Illinois in a long time.  State Representative Mary Flowers (ph) wants to require in law that all students wash their hands before eating lunch at school.  And if school officials can‘t get all the kids to the restroom before lunch, she wants them to hand out sanitary wipes or put anti-bacterial hand sanitizers in the cafeteria. 

Hey, this is just another attempt to make teachers parents.  This is just another incremental expansion of the welfare state over our lives.  I mean, next, it‘s going to be making kids floss or use the correct salad fork, or whatever.  But there is a health related reason, Max, that this is a bad idea.  And it is this: Quickly, research is beginning to suggest that kids who are too sanitary, wash their hands too much, who aren‘t exposed to enough germs, may have serious, severe health problems in later life.  Studies are suggesting that kids, for instance, who weren‘t exposed to enough germs the first couple of months of life, may be at a higher likelihood for asthma and a lot of other diseases that are much worse than asthma. 

KELLERMAN:  They never build the resistance to it. 

CARLSON:  Exactly. 

KELLERMAN:  OK, I understand.  So don‘t make the toddlers do it.  But you know what, health standards—the existence of germs was discovered about 100 years ago.  There were two competing theories: These little microorganisms, or there was this miasma that we were all—they couldn‘t figure out.  They finally figured out, yeah, there are germs flying around, and health standards got better once that happened.  And as a result, epidemics have been staved off.  The bird flu can become a pandemic, and if you can avoid this by having kids wash their hands, how could that not be a good idea? 

CARLSON:  I think you make a very good point, except for this.  There aren‘t epidemics in our country.  We don‘t have typhoid anymore.  We don‘t have problems with cholera.  Right?  We have already defeated it.  This is overkill.  This makes kids not healthy, but neurotic. 

KELLERMAN:  You are talking to a compulsive hand washer, although also an occasional nose picker, so I guess it‘s—but the point is, Tucker... 

CARLSON:  And a full time compulsive self-revealer. 

KELLERMAN:  Yeah, well, you know, this is what we are doing here.  It‘s a good idea.  Sanitary standards raising—being raised over time is a good idea, even in an institution like school.  If you have to institutionalize and kind of formalize those kind of standards, good. 

CARLSON:  You will never convince me.  I am all for filth in this and other arenas. 

All right, next, a Dutch treat for witches in the Netherlands.  The court there has ruled that the cost of witchcraft lessons can be taken as a tax deduction.  The court said a witch can take a deduction for the cost of classes if those classes increase their likelihood of employment later on.  Classes run $206 per weekend, including reading material, lodgings, and the tools needed for witchcraft.  A full course runs, not surprisingly, 13 weeks and costs more than $2,000. 

Max, you are going to be shocked to learn, I wholeheartedly support this.  Why?  Not because I am for witchcraft, at all, but because I am against socialism.  And every time a socialist country like the Netherlands does something clearly, patently, obviously insane, such as subsidizing witchcraft, it reminds the rest of us, we may be flawed, but at least we‘re not them. 

CARLSON:  I thought you were going to say, tax exemption, because if a witch can go generate business, it‘s a good thing in terms of—from a capitalist point of view, Tucker. 

Look, I—this is a bad idea, and I am going to tell you why.  It forces—I‘ll tell you why you should be against it.  It forces us—but you are not.  It forces us to confront the idea that all organized religion is really one form or another of superstition.  Because if we acknowledge that, we can‘t—you can‘t—you can‘t say, no, it‘s OK to do this.  If we acknowledge that all religion, is in some form a superstition, then it‘s harder to say that witchcraft or Scientology, as ridiculous as that word sounds, is not legitimate.  Who is to say what set of superstitions is more or less legitimate than another set of superstitions?  And if the Catholic Church or a mosque or a synagogue are getting tax breaks, why not witches?  Well, because probably the answer is, none of them should be getting tax exemptions.  They‘re all superstitions.

CARLSON:  I think you‘re—first of all, just because something is a superstition does not mean it‘s not true, A.  B, of course all religion is superstition.  That is, it is a belief in things intangible.  But some of it is a lot more ridiculous and pernicious than others, and witchcraft is definitely dumber and less real than almost anything else, apart from, say, Scientology.  And that‘s why this is such a great lesson (INAUDIBLE).

KELLERMAN:  I have read the Old and New Testament, the Koran.  I‘ve never read anything about Scientology, but from what I understand, they all seem equally superstitious to me.  Let‘s put it that way. 

CARLSON:  We are going to bring you in the fold at some point, Max. 

Thanks.  See you tomorrow. 

Stay tuned.  There‘s still plenty more ahead on THE SITUATION. 

(BEGIN VIDEOTAPE)

CARLSON (voice-over):  Just in time for Halloween, creative ways to humiliate your pug dog. 

Plus, another step for mobile power.  Wait until you see what‘s afoot in cell phone technology. 

Then, a gridiron grapple. 

UNIDENTIFIED MALE:  Wow, what happened here? 

CARLSON:  How one fan‘s brief thrill of victory turned into the bonecrushing agony of defeat. 

UNIDENTIFIED MALE:  This is incredible. 

CARLSON:  It‘s all ahead on THE SITUATION.

(END VIDEOTAPE)

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  I‘ll be honest, I had never seen of or heard of “Don Diva” magazine before today.  I am guessing many of you had not either.  The 165,000 circulation magazine that prides itself on being published for gangstas by gangstas—those of you wondering, that‘s gangsta as in rap music, not John Gotti.  “Don Diva” features interviews with prison inmates and gives tips on how to hide your dope and beat money laundering charges.

Joining me live in the studio tonight, Cavario H.  He‘s the co-owner and head writer for “Don Diva” magazine.  Cavario H, thanks a lot for joining us. 

CAVARIO H, CO-OWNER AND HEAD WRITER, DON DIVA MAGAZINE:  Thanks. 

CARLSON:  What does the H stand for? 

CAVARIO H:  Hunter. 

CARLSON:  Excellent.  Cavario H.  I like that name.  Who reads this magazine? 

CAVARIO H:  Everybody, pretty much.  I mean, anybody who comes across it, because the content is so racy.  You know, anybody who comes across it finds himself...

CARLSON:  This is racy.  Here‘s an issue, this is issue 21.  There‘s a kid on the cover with what looks to be a .45, and there are half-naked women inside. 

But 165,000, that‘s not everybody.  What is your target audience? 

CAVARIO H:  Our target audience, our guess would be, predominantly males, although we have a large female following, and getting stronger.  Inner city males, probably between the ages of, like, 18 and 35, something like that. 

CARLSON:  It‘s not a boring magazine.  I looked through three issues today.  Here, one issue at random had piece on how to hire a jailhouse lawyer, another on child support.  Here is one of the questions in the child support Q&A.  If the child‘s father is a rapper, can I garnish his royalty check?  It almost sounds like a racist parody here.  Do you think you are sort of helping to feed stereotypes with stuff like that? 

CAVARIO H:  No.  These are real concerns that people have, and they don‘t really have a viable vehicle to get that information, like at all.  These are real questions.  You have a lot of people out there who are trying to find out ways that they can get what they need, you know, young ladies who have children by rappers and basketball players, and so on and so forth.  Where are they going to go?  Like, they don‘t have the money to, or sometimes even the time between their daily struggle, to even find—where do I find this information? 

CARLSON:  Well, I know, I mean, I think that actually is—that is a fair question.  But the magazine itself has all sorts of, you know, ads and pieces on people wearing, you know, kind of Al Sharpton, the early years type jewelry like that.  And it has pieces on, you know, going to prison for drug charges and all that.  Basically, it seems to be celebrating a lifestyle that is under fire from a lot of people, not just conservatives, people like Bill Cosby, who say, you know, gangsta life and culture and all that is immoral and hurting black America.  What do you say? 

CAVARIO H:  Well, it‘s not really the gangsta culture, but really urban subculture.  The reason that it‘s gained this reputation for being a gangsta culture is because of the connotation that‘s kind of been applied to it by rap, which is really the reason why we do it, because in an average rap record, you are going to get about three and a half minutes of glorification of some of the aspects of gangsta lifestyle. 

CARLSON:  Right. 

CAVARIO H:  This is nothing to counter that.  We have created a vehicle for counter culture, you know, to give people the real information behind those images.  So it‘s not really negative in the way that the images may imply.  The images are used to draw people‘s attention.  You know, we are a small publication, relatively small, and if we hadn‘t used the kind of images that people are already attracted to, that makes rap a multibillion dollar industry, people wouldn‘t be really interested, you know, especially people who‘d most benefit from this information.  They wouldn‘t be interested in reading it. 

CARLSON:  But you don‘t do a lot of music pieces, do you? 

CAVARIO H:  Sure, we do.  Sure, we do.  Especially like we were the first to ever feature 50 Cent on the cover of a magazine, ever, like we were the first ones to ever do that, and we were the first to show people what 50 Cent looked like. 

CARLSON:  You discovered them? 

CAVARIO H:  No.  No, no, no.  50 had been around.  He had been heard, but actually never seen. 

CARLSON:  So who are your advertisers?  Who advertises in the magazine? 

CAVARIO H:  All the major—all the major labels, all the major record labels, clothing companies, you know, Stall & Dean, you know, which is a pretty mainstream company, it‘s been around a pretty long time.  Because we do have such a strong standing in the youth market, you know. 

So we get a lot of independent cats.  Got a lot of people out there who got music and different services and businesses that they like to get out there, but they don‘t have a way to get it out there. 

CARLSON:  How many—I don‘t know if you have done reader surveys, but how do people—and I don‘t even think we can show the pictures in here, but how many people read it, look at it for the pictures? 

CAVARIO H:  I don‘t know.  I mean, I would guess a lot of people are drawn to it by the pictures.  But once they look at the pictures, they are going to catch some paragraph or some word or something that is going to make them go, that‘s not really what I would expect to be associated, that‘s not a word or a phrase I would expect to be associated with this image.  And that is what makes them read it.  An then they realize, oh, OK, these images are being used to draw me to this information, because that‘s what it‘s really all about. 

CARLSON:  And my last, which probably should have been my first question, what does “Don Diva” mean? 

CAVARIO H:  Well, don is a man at the top of his game, whatever that game may be, a respected man, and a diva is the same for a woman.  You know, and that‘s...

CARLSON:  So it‘s a lifestyle magazine for both men and women. 

CAVARIO H:  Men and women.

CARLSON:  Something you don‘t see in magazine world. 

CAVARIO H:  I mean, there‘s a lot of information in there that is really useful to just about anybody.  I mean, we tell people about how like a person might, say, get a solicitation in the mail for a credit card.  And they might embellish a little bit on their income, so they can get a favorable response from the credit card company. 

CARLSON:  Yes. 

CAVARIO H:  And then they put like a stamp on that, and then put it into the mail, and they commit mail fraud, and they don‘t know it.  And it‘s a federal crime.  Like, we educate people on that kind of thing.  You know what I mean?  It‘s education. 

CARLSON:  As I said, it‘s not boring.  I read three issues cover to cover. 

CAVARIO H:  Ah, see. 

CARLSON:  I appreciate it.

CAVARIO H:  You were caught.

CARLSON:  Cavario H.  Maybe I am...

CAVARIO H:  That subscription...

CARLSON:  Maybe I am the target audience for “Don Diva.” 

CAVARIO H:  You better believe you are. 

CARLSON:  The gangsta magazine.

CAVARIO H:  You better believe you are.

CARLSON:  I always suspected I was.  Thanks.

CAVARIO H:  Thank you very much. 

CARLSON:  Appreciate it. 

CAVARIO H:  Thank you.

CARLSON:  Coming up, why are grown-ups always ruining the fun for kids?  That‘s what one angry caller wants to know about the school that did not celebrate Halloween today.  I‘ll dial up THE SITUATION voicemail when we come back in a minute.

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  Time for our voicemail segment.  Call anytime, we are always home.  Let‘s see what you had to say. 

(BEGIN VIDEO CLIP)

GRACE:  Hi, Tucker.  This is Grace from Southbury, Connecticut, and I think it‘s very interesting that this whole Rove thing and Scooter thing is going on.  Does nobody see the big picture?  It‘s going to go at least to Dick Cheney, and then Dick Cheney is going to step down, and Bush is going to have Condoleezza Rice as his vice president to run against Hillary Clinton. 

(END VIDEO CLIP)

CARLSON:  I have been hearing this rumor for so long.  This rumor, a version of it, actually wound up on the front page of “The New York Times,” right before the last election, Dick Cheney is going to be replaced.  Totally untrue.  I mean, maybe it would be a good idea, maybe not—probably not, actually.  Cheney has a big hand in running the government. 

But it‘s not going to happen.  It‘s not going to happen.  I don‘t know why

where this rumor comes from.  But Condi Rice is not going to be the vice president.  I can predict that confidently.

Next up. 

(BEGIN VIDEO CLIP)

NANCY:  My name is Nancy Johnson (ph) from Jackson, Michigan.  And I cannot believe that they are trying to take Halloween from little kids.  That‘s just ridiculous.  If the people don‘t want to have their kids participate in Halloween, let them stay home from school. 

Thank you.  I like your show.  Bye. 

(END VIDEO CLIP)

CARLSON:  Thanks, Nancy.  I completely agree.  You can divide this world into the disgruntled and the gruntled.  We in the gruntled make up the vast majority of America and probably the world, but the disgruntled, that tiny percentage of people who are just, oh, unhappy, neurotic, anxiety-filled, restless, trouble making, they wreck everything for the rest of us.  It‘s tyranny of the few disgruntled, and we should stop it immediately. 

Let me know what you are thinking.  You can call anytime.  Operators standing by.  That‘s 1-877-TCARLSON, also known as 877-822˜2D7576.  If you‘re feeling literate, you can also send me your questions on our Web site, e-mail me at tucker@msnbc.com.  I‘ll try to respond every day to anything you come up with, no matter how weird.  Log on to tucker.msnbc.com for the answers.

Still ahead on THE SITUATION, if you are going to run into the field and steal the ball from the quarterback during an NFL game, you should probably be playing for one of the teams.  A fan gets in on the action when we visit “The Cutting Room Floor.” 

(COMMERCIAL BREAK)

CARLSON:  Welcome back, to the show with the weirdest camera crew in television.  It‘s THE SITUATION.  Time now for “The Cutting Room Floor” with Willie Geist. 

Willie, what are you supposed to be? 

WILLIE GEIST, THE SITUATION:  Same thing I am every year, Tucker.  A hard-hitting journalist who asks the tough questions.  And we run a very professional operation, as you can tell. 

CARLSON:  Yes, we do. 

GEIST:  Let‘s get right to it. 

CARLSON:  Thank you, sir.  All right, for 364 days of the year, I am against the idea of people dressing up their dogs, but for Halloween, I reluctantly make an exception.  This is the 12th annual Halloween Howl festival in Burbank, California.  It‘s a gathering of dogs, highlighted by the pug costume contest.  Pug Vader, Pug Einstein and Pug Zorro were among the contestants this year battling to call themselves the pug dog with the best Halloween costume in Burbank, California. 

GEIST:  The nice part about this event, Tucker, the dogs enjoying it just as much as the people.  Look how miserable they are.  Dogs do not want to wear Darth Vader costumes. 

CARLSON:  No, they don‘t.  No, they don‘t.

GEIST:  It‘s a fact of life.

CARLSON:  Only poodles like costumes, that‘s what I (INAUDIBLE). 

GEIST:  Yes, that‘s true.  They don‘t want to be trick-or-treaters; they want to chase trick-or-treaters. 

CARLSON:  That‘s exactly—that‘s exactly right. 

Under what circumstances could Santa and his elves be considered threatening to kids?  When they are selling beer and state bureaucrats are involved, that‘s when.  Connecticut state officials are attempting to ban the sale of Seriously Bad Elf Beer—that‘s the name—because they believe the smiling elf on the label entices kids to drink alcohol.  The state liquor control board has already warned some distributors not to sell the beer. 

GEIST:  This is so stupid I don‘t know what to say about it. 

CARLSON:  It‘s Connecticut, it‘s not surprising. 

GEIST:  The idea that a 10-year-old would see an elf on a bottle and be driven into a lifetime of alcoholism, it doesn‘t really—I think we are missing a few steps. 

CARLSON:  And liquor stores are closed on Sundays in Connecticut, and bars are open until noon. 

(CROSSTALK)

CARLSON:  Well, don‘t you just hate when the battery on your cell phone dies while you‘re walking down the street in the middle of a conversation?  Well, it won‘t happen anymore, thanks to this Indian man‘s new line of cell phone charging shoes.  There is a device inside the shoes that sends a jolt of power to your phone every time you take a step.  You will never run out of juice again.  Wow.

GEIST:  Those are handsome too.  I predict this is not a big seller this holiday season.  The nice part is, I think we will get a look at it in a second, you are not really compromising any fashion for the sake of function.  You can still get a nice open-toed sandal with your white socks.  It‘s really a sharp look. 

CARLSON:  You have to walk a lot for this to work, which precludes a lot of us.

GEIST:  Yes.

CARLSON:  It really does.

Well, Green Bay Packers quarterback Brett Favre had a tough day against the Cincinnati Bengals—not clear if that‘s how his name is pronounced, by the way. 

GEIST:  It is. 

CARLSON:  He threw five interceptions in his team‘s loss.  He even turned over the ball to a Bengals fan.  In the final moments of the game, Favre dropped back to pass, when a fan ran onto the field.  The fan snatched the ball out of his hands and started running for the end zone.  Though the Bengals appreciated the extra man on defense, stadium security was less grateful.  The fan was tackled before he made it into the end zone.

GEIST:  Look at the effort here.  Security flushes him into the middle of the field, and that guy just wraps up, grabs some cloth, gets his head across the body.  There it is.  Just—a clinic.  A tackling clinic.

CARLSON:  Professional-looking too. 

GEIST:  It is a bad day for Brett Favre, though, when the fans are taking the ball from him. 

CARLSON:  Was the guy hurt? 

GEIST:  No.  He‘s fine.  And actually, he plead not guilty today to trespassing. 

Dude, there are millions of people who witnessed it, so you‘re in trouble.

CARLSON:  Willie Geist, happy Halloween.

GEIST:  You too, Tucker.

CARLSON:  That‘s THE SITUATION for tonight.  Thank you for watching.  Up next, “COUNTDOWN WITH KEITH OLBERMANN.”  We‘ll see you back here tomorrow.  Again, happy Halloween.

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

END   

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