updated 11/4/2005 10:34:11 AM ET 2005-11-04T15:34:11

Guest: John Dickerson, John Fund, Rush Holt, Daniel Holt, Jeff Sommer, Max

Kellerman

JOE SCARBOROUGH, HOST, “SCARBOROUGH COUNTRY”:  That's all the time we have for tonight.  THE SITUATION with Tucker Carlson starts right now.  Hey, Tucker, what's THE SITUATION tonight?

TUCKER CARLSON, HOST:  I'm sort of—my head is spinning from watching that video, Joe, but I am going to pull it together.  Thanks. 

Thanks to all of you at home for watching.  We appreciate it. 

Tonight, we'll investigate who leaked classified information about the CIA's secret prisons abroad.  We'll show you remarkable series of e-mails sent by former FEMA director, Mike Brown.  And we'll tell you why some conservatives may be taking a second look at Supreme Court nominee Sam Alito. 

We begin tonight with Scooter Libby's arraignment before a federal judge in Washington, D.C.

Dick Cheney's former chief of staff pleaded not guilty for his role in the CIA leak scandal.  Libby, you may remember, was charged with lying to investigators and the grand jury about revealing the identity of CIA officer Valerie Plame Wilson to reporters. 

His next appearance in court will be February 3. 

Outside the courthouse, one of Libby's lawyers, Ted Wells, said quote, “He wants to clear his good name, and he wants a jury trial.” 

Here to discuss what all this means for Libby, Karl Rove, and the many reporters involved in the case, as well as the White House, chief political correspondent for “Slate,” our old friend, John Dickerson.

John, thanks for coming on. 

JOHN DICKERSON, POLITICAL CORRESPONDENT, “SLATE”:  Sure, thanks for having me. 

CARLSON:  So there was—there has been in recent days a Libby Legal Defense Fund set up in Washington.  Ted Olson, the former solicitor general, amazingly enough, is the head of this fund.  I'm wondering, will the vice president be able to give money to this fund, and more generally, will the vice president stand behind his former chief of staff?

DICKERSON:  Well, we haven't seen much from the vice president on, and you get the sense that Scooter is really on his own here.  I mean, Cheney said something right after the indictment was announced.  He sort of put in a good word for Scooter and mentioned that he was innocent until proven guilty.

But if there's one thing we know about this vice president, is that he likes to call a spade a spade.  And you would under normal circumstances hear him come out and sort of loudly defend his former chief of staff, who worked so hard for him.  And he's been very quiet.  And that's, in part, because he says publicly that's because there's an investigation still ongoing.  And he may, in fact, show up at the Scooter trial. 

But it's also because the White House wants to kind of keep this confined to just Scooter and not have it go any further and turn into a big conversation about what led us into the Iraq war. 

CARLSON:  It is—it is so offensive to me.  The White House has been telling off the record, but its own employees not to talk to Scooter Libby.  Not only is this morally wrong—this is a guy who devoted his whole life to the vice president.  He's got little kids.  He worked 18 hours every day, for five years. 

But it's also dumb, it seems to me.  I mean, he presumably has knowledge that could hurt the vice president.  He's under pressure from this prosecutor.  Why would the White House want to push him away at a time Pat Fitzgerald is trying to squeeze him for more information?

DICKERSON:  Well, the White House would like this whole mess to go away, and to the extent this is just about Scooter Libby's behavior in front of the grand jury, that helps with that area. 

It was Scooter Libby did a bad thing in front of the grand jury, didn't have anything to do with a plot against Wilson or any kind of conspiracy.  If they can get rid of the continuing investigation of Karl Rove, then it's over, and it's Scooter's problem. 

CARLSON:  Are they worried at all that Scooter might decide to cut a deal?  Because apparently the prosecutor is pushing for real time, not six months at Club Fed, but real prison time.  Are they worried he's going to turn?

DICKERSON:  I think they're—well, I think they're worried about lots of different variables.  I think he's such a loyal member of the administration, I don't know whether they're particularly worried about that. 

But they're just worried about all of the variables associated with it altogether, which is part of the reason, again, they want this to be seen like sort of a Scooter only problem. 

CARLSON:  Well, it looks like it could become a Karl Rove, too, problem.  “The Washington Post” did kind of an amazing piece today, claiming—I presume it's true—that members of the administration staff at the White House are debating whether or not Karl Rove ought to resign.  I can't remember the last time I saw a piece where White—senior White House staff were kind of taking shots at each other in the pages of the paper. 

Is this real?  What do you know about this?

DICKERSON:  The White House—White House officials say it's not real.  I mean, there is conversation.  There's gossip.  There's lots of, “Oh, my gosh, what's going to happen?” 

But the kind of meetings where somebody sits down and says—and has a formal conversation about what to do, they insist those conversations are not happening. 

But it is something that everybody in the White House is talking about, and in part that's because it's just this enormous big problem still waiting to be unresolved.

In some ways, it would have been easier if—if Rove had been indicted on Friday, and Libby, too, and they could have at least started to deal with the problem. 

But they got the worst of both worlds.  They got one indictment and then this kind of lingering low-grade—well, not so low-grade fever, but lingering fever, related to Rove and what's ultimately going to happen to him. 

CARLSON:  John Joplin (ph) also had a pretty interesting piece on MSNBC yesterday, suggesting that Rove's security clearance could be pulled, because in talking to reporters about Valerie Wilson's identity, he violated an executive order issued by President Clinton that says if you recklessly disregard the handling of—mishandle classified information, you no longer have security clearance. 

Is this going to happen?  Is anybody talking about this?

DICKERSON:  I don't think so.  I think what's ultimately going to happen to Karl Rove, sort of we have to wait until Fitzgerald finishes.  Because the White House can't do anything or doesn't want to do anything until they can figure out what damage they're—they're cleaning up. 

So I think nothing's going to—I don't think that will happen.  Also, I'm not sure whether Rove would be in trouble, because he would have to know it was classified, and it's all very murky about whether he knew that was classified information or not.

CARLSON:  Yes.

DICKERSON:  But I think they're just—in order for the White House to do anything to start cleaning this up, they've got to get some kind of resolution from Fitzgerald. 

CARLSON:  Yes, and I hope in the meantime they support Scooter Libby.  They employed the guy for all these years.  If they thought he was evil, they shouldn't have had him on staff.  So now is not the time to cut him loose, I don't think. 

Anyway, John Dickerson from Washington.  Thanks a lot, as always. 

DICKERSON:  Thanks, Tucker. 

CARLSON:  Looks as if the president's wish for the final Supreme Court vacancy to be filled before the end of the year will not be granted. 

It was announced this afternoon that January 9 will be the official start date for Judge Sam Alito's confirmation hearings.  While some Democrats have already floated the idea of filibustering the nominee, it appears after actually reading through his 300 rulings and speaking with his former co-workers, they may have spoken a bit too soon. 

Joining me now from Phoenix live to discuss whether or not Samuel Alito really is conservative, “Wall Street Journal” columnist John Fund. 

John, thanks for coming on. 

JOHN FUND, COLUMNIST, “WALL STREET JOURNAL”:  Pleasure. 

CARLSON:  The “Times” had—there were a bunch of pieces about this today, suggesting that possibly Judge Alito is not the fire-breathing right-winger we thought, or some of us hoped he might be. 

One quote struck me particularly.  Jeff Wasserstein (ph) said to the -

·         a former—a Washington lawyer who clerked for Alito in 1998, said this to the “L.A. Times”:  “I'm a Democrat who always voted Democratic except when I vote for a Green candidate, but Judge Alito was not interested in the ideology of his clerks.  He didn't decide cases based on ideology.  His record, not extremely conservative.”

This is a serious leftie saying, “This guy is not so conservative.” 

What do you think of that? 

FUND:  Well, I've talked to Mr. Wasserstein (ph) as well, and various other people who have worked for Judge Alito.  He's a judges' judge. 

The job of a federal appeals court judge is to follow Supreme Court precedent.  Obviously, you have some leeway, but it shouldn't surprise us that some of his cases fall on one side, for example, the abortion issue, and some would fall on the other side. 

He is someone who looks at the facts of each case and through the prism of the Constitution.  He's not result oriented, which is what, frankly, a lot of liberals judges have been over the last generation, and that's part of the problem.  When the—when the judges become more acting like a legislature, we have a complete breakdown of the rule of law. 

CARLSON:  Well, theoretically, we do, but also there's a political element to this.  It is by design a political process, and the president's conservative supporters want a conservative Supreme Court justice to fill Sandra Day O'Connor's seat. 

So here you have four abortion cases on which he has ruled since becoming an appellate judge.  Three out of the four apparently he ruled on the side, what we would call the pro-choice side.  In one case, he ruled that the Constitution does not afford protection to the unborn.

This guy—doesn't appear to be as opposed to legal abortion as we assumed he was.

FUND:  Any appeals court justice who does not follow Supreme Court precedent is going to be completely marginalized.  I will simply say, Judge Alito has been a proud member of the Federalist Society over 20 years.  That should say something and mean something. 

CARLSON:  Well, OK, explain—explain both of those.  What do you mean by following Supreme Court precedent in these cases?

FUND:  The job of an appeals court judge is to take the various cases that come to him, and because not everything can go to the Supreme Court, thank goodness, actually, and apply the Supreme Court precedents to the cases. 

Obviously, there's some interpretation, there's some leeway.  But you cannot directly contradict the Supreme Court of the United States.  That's not your job.  That's why being on the Supreme Court is so important and frankly, Tucker, such a cool job. 

CARLSON:  So that's right.  So in other words, just to make it totally clear for our viewers, because Roe v. Wade is the law of the land, as settled by the Supreme Court, he can't rule contrary to that as appellate judge. 

FUND:  Exactly. 

CARLSON:  OK, great.  And what do you mean—explain also the Federalist Society.  You pointed to that as sort of a badge of his conservativism.  Is it?

FUND:  Yes.  The Federalist Society is a group of conservative and libertarian lawyers.  They often have debates and invite liberals in, as well. 

These are people who believe in the original intent of the Constitution.  They believe the Founding Fathers meant something when they wrote the document.  They believe, inasmuch as possible, given changing circumstances and new technology, we should try to follow the original constitutional blueprint. 

We shouldn't make up rights.  We shouldn't have the courts act like legislature, when the court's job is simply to be a referee and umpire. 

And the Federalist Society is basically the center of intellectual legal life in this country from a conservative point of view. 

CARLSON:  Finally, we've seen a lot of—so many, in fact, testimonies, from liberal judges on behalf of Judge Alito.  It does look like almost like a—not almost, it looks like a White House campaign to make it seem as if he's not as conservative as he is.  Is that going on?  What is the White House doing to sell him?

FUND:  The same thing they did with John Roberts.  He is a great intellect.  He is someone who's likable.  He's someone who doesn't breathe fire.  He's someone whose clerks, regardless of whether they're liberal or conservative, like him, and whose rulings are predicated on the rule of law, not some result oriented outcome based on his personal beliefs. 

In other words, he is going to be Judge Roberts' slightly less socially skilled younger brother. 

CARLSON:  All right. 

Judge Alito, not a liberal, says John Fund of the “Wall Street Journal.”  Thanks a lot for joining us, John.

FUND:  Thank you. 

CARLSON:  Still to come, Democrats are absolutely outraged at the leaking of CIA officer Valerie Plame Wilson's name.  Why aren't they equally infuriated over the leak revealing top secret CIA operations in Eastern Europe?  THE SITUATION investigation, after the break.

Plus, FEMA incompetence may seem like an understatement when we reveal director Mike Brown's e-mail correspondence after Hurricane Katrina.  Busted.  What was on his mind while thousands of people were struggling to survive?  Find out when we come back.

(COMMERCIAL BREAK)

CARLSON:  Still to come, Supreme Court nominee Sam Alito likes his coffee.  I mean, he really likes it.  We'll talk to the man who brews his joe.

Plus, are we winning the war on terror?  A new book says we're well on our way to losing it.  You'll meet the author.  Be right back.

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

A little over two years ago, columnist Bob Novak outed Valerie Plame in the pages of the “Washington Post,” and Democrats were outraged.  Some called it treason. 

Well, yesterday, the “Washington Post” again printed highly classified information.  In a page one story by Dana Priest, the “Post” revealed that the CIA maintains and has maintained for the last couple of years a series of highly classified prisons throughout the world, at which al Qaeda suspects are detained. 

And almost nobody said a word about this leak.  Why is that?

Well, to help explain, we hope, tonight, we're joined by Democratic Congressman Rush Holt from the state of New Jersey, who sits on the House Intelligence Committee. 

Congressman, thanks a lot for joining us. 

REP. RUSH HOLT (D), NEW JERSEY:  Good to be with you, Tucker. 

CARLSON:  Now, I remember—remember, I'm still seeing the effects of the leak of Valerie Plame's name.  And it may be fair, and Democrats very much outraged by this. 

Yesterday, you had this tremendous leak of even more classified information in the pages of the “Post,” and I haven't heard a single Democrat call for an investigation into how that information got there.  Why?

HOLT:  Well, I wouldn't say that there has been no talk about it.  There's been a great deal of talk about it.  This was a splash in the paper. 

You know, I should begin by saying that I am limited in what I can say about this, because I've had access to some classified information on the subject. 

CARLSON:  Yes. 

HOLT:  So—but with regard to your intro, you said some called it treasonous.  Well, you'll have to recall that it was not Democrats who said that.  In fact, it was George Herbert Walker Bush that said disclosure of the identity of an undercover agent... 

CARLSON:  Right. 

HOLT:  ... is the worst form of treason.  And the reason is, many of these people are out there with nothing but their wits and their cover to work with.  They don't have diplomatic cover in some cases, so if they are exposed, they are ruined. 

CARLSON:  And it's a big deal.  It can hurt American national security.  And I'm not even contesting that.  I am merely saying that you have information in the “Washington Post” yesterday that's of a much greater magnitude.  This is not the outing of an individual.  It's the outing of an entire operation, and it's already hurting this country abroad.  And I'm wondering, where's the outrage over this leak?

HOLT:  As far as, you know, where detainees are being interrogated, well, we know they're being interrogated someplace.  We just haven't—it's never been disclosed where they are being interrogated. 

CARLSON:  Well, actually, we—you may know that, because you're on the House Intelligence Committee, but I'm not sure a lot of people... 

HOLT:  Well, I think every American knows that any al Qaeda operative who has been captured is being interrogated. 

CARLSON:  Well, hold on.  Hold on. 

HOLT:  That's why all the talk about Guantanamo.  That's why all the talk about Abu Ghraib. 

CARLSON:  With all respect, here's—here's what the “Washington Post” said.  “The existence of these facilities, known as black sites in classified CIA, U.S. Justice Department and congressional documents, are known to only a handful of officials in the U.S. and usually only to the president a few top intelligence officers in each host country.”

This is really secret stuff.  Absolutely secret.  I compare your reaction now to this, which seems frankly a little blase, to the outraged press releases you've been sending out about Valerie Plame leak, where you say Congress has got to get to the bottom of how this was made public.

Why not similar outrage about this?  Pretty simple question.  Why aren't you angry about this?

HOLT:  You know, I know, all American knows that high-value captured operatives from al Qaeda and other terrorist groups are being interrogated, and where they're being interrogated, I don't know or can't say. 

CARLSON:  But wait.  Hold on.  We also know—hold on.  We also know that there are a lot of CIA officers who live in Washington, D.C. The outrage was, when one of them specifically was named in the “Washington Post.” 

We have information here that was leaked, apparently by the CIA or somebody in the executive branch of government, and it's damaging America's standing in the world. 

My question is simple: will you push for a congressional investigation to get to the bottom of how this information...

HOLT:  We—absolutely.  I think that the release of classified information is dangerous.  The release of the identity of an undercover agent is among the most dangerous kinds of leaks. 

CARLSON:  OK.  You find out, congressman, will you promise to come back on our show and tell us how this classified operation was leaked to the press?

HOLT:  Chances are, if I find out about anything to do with the Dana Priest story in the “Washington Post,” it will be something that I won't be able to talk about on your show. 

CARLSON:  That's a shame. 

HOLT:  But I do think, you know, the American public needs to know that Congress is aggressively... 

CARLSON:  All right. 

HOLT:  ... investigating these things that affect our national security. 

CARLSON:  Well. 

HOLT:  And aren't just sweeping it under the rug. 

CARLSON:  Good for you. 

HOLT:  Aren't just covering it up. 

CARLSON:  Please...

HOLT:  A cover-up Congress is not what they want. 

CARLSON:  Please don't cover this up or sweep this under the rug. 

Congressman Rush Holt of New Jersey.  Thanks a lot for coming on. 

HOLT:  Thank you, Tucker.

CARLSON:  I appreciate it. 

Still to come, the mayor of Las Vegas wants to bring back corporal punishment.  We're not just talking a slap on the wrist.  We're talking knives.  Wait until you hear his proposal to punish anyone who sprays graffiti on freeway overpasses.  That's next on THE SITUATION.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

LAWRENCE DI RITA, PENTAGON SPOKESMAN:  Very well trained in our interrogation techniques.  We know that, as a matter of certain fact.  We know the detainees that we have captured in this global war on terror are aware of how we interrogate according to our own field manuals. 

(END VIDEO CLIP)

CARLSON:  That was Pentagon spokesman Larry Di Rita, highlighting one of the many challenges facing America in the global war on terror. 

Today, counter-terrorism officials announced the arrest of a Syrian born bomb and poison expert in Pakistan.  The man is believed to have extensive ties to al Qaeda.  And while he could provide information on sleeper cells around the world, my next guest says much more has to be done if the U.S. has any hope of winning the war on terror.

Daniel Benjamin is a former director for counter-terrorism at the National Security Council, and co-author of the book, “The Next Attack: The Failure of the War on Terror and a Strategy for Getting it Right,” which incidentally has a glowing review in tomorrow morning's “New York Times.”

Mr. Benjamin joins me now from Washington. 

Daniel Benjamin, thanks for coming on.

DANIEL BENJAMIN, FORMER DIRECTOR OF COUNTER-TERRORISM, NATIONAL

SECURITY COUNCIL:  Thank you for having me. 

CARLSON:  So we're losing the war on terror.  It seems the most important measure, the essential measure of the war on terror is whether or not the United States is attacked at home, and we haven't been.  So how are we losing?

BENJAMIN:  Well, of course, the terrorists are getting a lot of what they want in Iraq.  That's the main show right now.  We've lost nearly 2,040 Americans, and thousands more injured, and our credibility has been badly wounded by the destabilization of the occupation and the new regime.  So it's a mistake to just look at what's going on in the U.S.

CARLSON:  And I agree with that, and I probably—we probably have pretty similar views about the war in Iraq.

But I still think the most important measure, and I can't imagine you don't agree, is whether or not we have a repeat of 9/11, and it seems to me the administration, for all its many failings, deserves some credit, some credit for preventing it, don't you think? 

BENJAMIN:  There's no question, good news we haven't had another attack.  And there's no question that we've done well on tactical counter-terrorism, getting bad guys like Setmariam, the Syrian who was allegedly captured today.  That's the good news. 

The bad news is that, for a number of reasons, the ideology is spreading, and we're creating more terrorists than we are catching.  And that over the long run it's going to cause us a real problem, and is heading us down the road to perhaps another 9/11 or worse. 

CARLSON:  One of the points you make in the book, I think in the final chapter of the book, which I read this afternoon, was that we are hated in the Islamic world because of our position on Israel.  I think you make that point pretty clearly, and that domestic politics in the United States make it impossible to take an even-handed stance toward Israel.  That is an adequate, fair representation of your point of view?

BENJAMIN:  Well, not quite.  I mean, I'm a strong supporter of Israel. 

Always have been. 

CARLSON:  Right, so am I. 

BENJAMIN:  The problem is that our support for Israel has become ever more unconditional, and is seen in the region as not being in the least bit even handed.  In part because of pressure from evangelical groups, we're now often outflanking Likud in some of our positions. 

For example, some of the things that the White House has said about targeted killings have shocked lots and lots of Israelis, and this is causing us a real problem in the region. 

CARLSON:  Right, and there were a lot of Americans who opposed withdrawal from the Gaza Strip, of course, something that Ariel Sharon is responsible for. 

I guess the one thing I objected to in your book, as I read through it, was the sense that it's our fault that they hate us.  Here's what you said in an interview with Reuters I think was telling.  You said, “Everyone says there's a war of ideas out there, and I agree.  The sad fact is, we're on the wrong side of that war of ideas.” 

It's not our fault that they hate us.  They hated us before 9/11, and before the invasion of Iraq.  Isn't that right?

HOLT:  Well, that's like saying there was a fire in the kitchen before we doused it with gasoline and took down the house.  Yes, they did...

CARLSON:  Wait, hold on.  There's a moral component, however, to this question, and that is simple.  Do we deserve what we are getting from the Islamic word?  And you seem to be suggesting we do deserve it. 

HOLT:  No, that's not true, actually.  Our point is a purely analytic one.  We're not saying that this is always justified.  The Middle East and the larger Muslim world is filled with conspiracy theories, but we need to start taking more seriously some of the very real grievances in the region, because it's just in our national security interest. 

I'm not saying we should in any way capitulate, concede, appease, but we need to start peeling off moderates from the extremists and showing them that America is not as bin Laden describes it.  That is, it's not our aim to occupy Muslim countries and harm Islam.  That's what we need to be showing more effectively, and we're not going to do it. 

CARLSON:  We sure spend a lot of time saying that we love Islam, and it's a religion of peace.  Apart from cleaning up the disaster in Iraq, what's the one most important thing we can do to convince the Islamic world that we're not worth attacking?

BENJAMIN:  Well, I think the one thing that would probably be most useful for us to do now is to press hard on Middle East peace, but also on lots of regional conflicts that are really churning out jihadists in large numbers, be it Chechnya or Kashmir, Southeast Asia, now in Thailand, in Philippines. 

All of these different conflicts are really the breeding grounds for lots of soldiers, and if we were to really exert some diplomatic muscle, it might pay off in real benefits over the long term. 

CARLSON:  Push India, push Russia.  That makes sense to me.  David Benjamin, congratulations on your review tomorrow morning, and on your book.  Thanks. 

BENJAMIN:  Thank you. 

CARLSON:  Still ahead, do you feel violated when airport security screeners put their mitts all over you?  Of course you do, and so did one woman, who decided to do some patting down of her own.  We'll explain why she's a hero and why she's in trouble as THE SITUATION rolls on. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. JOHN MCCAIN ®, ARIZONA:  I'm very favorably disposed towards him, but the process that's been set up (INAUDIBLE) to be followed, and that's periodic meetings and evaluations. 

(END VIDEO CLIP)

CARLSON:  Welcome back.  That was Senator John McCain, discussing how the so-called gang of 14 moderate senators will analyze the nomination of Sam Alito.  When their evaluation process is complete, will they find that the judge from New Jersey is not as conservative as we all once thought? 

Joining me now is someone who says, if you thought you knew everything about Alito, you may want to think again, and hard.  Live tonight from Burbank, California, welcome back, MSNBC contributor Flavia Colgan.  Flavia, welcome.

FLAVIA COLGAN, MSNBC ANALYST:  Thank you, Tucker. 

CARLSON:  Now, you have got a really interesting column today, in which you lay out conversations you have had with a bunch of liberals or Democrats, anyway, who know Sam Alito, and they say he is not any kind of right-winger.  Tell us about it. 

COLGAN:  Right, well, Tucker, first, don't compliment me too much.  You are going to get me in more trouble than I am already in.  As you well know in D.C., if you want to go to a lot of cocktail parties, you can't be balanced or too logical.  And you would certainly know about that...

CARLSON:  Oh, sure, you can. 

COLGAN:  I'm sure—no, I am sure you get a lot less Christmas cards when you took that principled stand against the Iraq war.  The only fringe benefit it is, we get to sleep at night a little bit. 

But listen, what I said in the column was true, which is that I was ready to sort of join the chorus.  I had done an internship in the district court with someone who had (INAUDIBLE) senior status on the Third Circuit, and as you know, our governor's wife is also on the Third Circuit.  So I knew a lot of folks over there. 

So I said, you know, let me start making calls, let me ask these people and try to get a picture, off the record, of what type of guy this is.  Thinking that I would hear, he's right of Attila the Hun, this guy is unreasonable.      

And I tell you, it was like an echo chamber.  Not only did I keep hearing, he's competent, he's bright, he's balanced, but then I asked people point blank, will this man overturn Roe versus Wade?  Will this man rule like an ideologue?  Is this man a Bork?  And every single time, without hesitation, without pause, they said, absolutely not. 

CARLSON:  Well, you know, there's an interesting phenomenon I have noticed throughout my life, where liberals I know, liberal friends of mine even say to me, you know, you are not that right wing.  You don't really believe all that stuff.  And the phenomenon is this: Liberals believe that you cannot simultaneously be a committed conservative and a decent person.  So if they like you personally, they decide you must not really believe what you say, you can't really be that conservative.  Don't you think that might be going on here?  Fellow judges who like this guy, Sam Alito, just can't imagine that he really believes all that crazy right-wing stuff, so they are calling him a moderate?

COLGAN:  No, I don't know, I think it's a little bit more nuanced than that.  I think they are familiar with his decisions.  And you know, like I said in my column, that of the four decisions that really looked at abortion, really Casey versus Planned Parenthood was the only that you could say was, quote/unquote, pro-life.  And even then, I mean, certainly a moderate like myself could even, you know, support a decision like that. 

I think what's going on here from my party is that they are a little bitter that they didn't win, still.  I mean, I keep telling Democrats, if you want to get moderates or progressive judges on the bench, whether it's the circuit court or the Supreme Court, you have to win elections, Tucker.  I mean, that's what you get. 

CARLSON:  That's a good point. 

COLGAN:  That's one of the benefits of winning the presidency. 

CARLSON:  That whole democratic process thing, right. 

COLGAN:  (INAUDIBLE).  Exactly.  And my point to Democrats is, look, if you really—if Casey versus Planned Parenthood is just the weak link to you, I mean, I always view it if there was a chain from here to the heavens, and just one link was off, that wouldn't be reductionist if he said, look, one link is off.  And if that link for you is Casey versus Planed Parenthood, by all means, get in the streets, speak loud, speak now, and try to bring this guy to his knees.  But you know what, if it's not the weak link for you, come out and support this man.  What Democrats want to see and what people want to see across this country is principled leadership, of backbone and vision.  And if Democrats start doing that, not only for Alito, but issues across the board, like the Iraq war and the bankruptcy bill, they will start winning elections, and they will get to appoint judges, and they won't have to worry about these issues at all. 

CARLSON:  They are a long way from that.  I mean, for all the president's problems right now, and his 39 percent approval rating, his opposition is as disorganized as it's ever been. 

But speaking of problems besetting the White House, e-mails were released today—you know, there's this congressional investigation into what went wrong in the federal response to Hurricane Katrina—and e-mails sent to and from Mike Brown, the former head of FEMA, were released today.  I want to put a couple of them up on the screen, because I think they are so worth chuckling over. 

Here's an e-mail.  August 29th.  This is from his PR person.  Brown is on “The Today Show.”  Seh says, quote, “You look fabulous.  And I'm not talking the makeup.”  Brown responds at 7:52.  “I got my shirt,” he says, “at Nordstrom's.  Are you proud of me?  Can I quit now?  Can I go home?”

Two days later, August 31st.  FEMA's only employee in New Orleans when Katrina struck writes to the head of FEMA, Mike Brown.  “Sir, I know that you know the situation is past critical.  Many will die.”  Brown responds, quote: “Thanks for the update.  Anything specific I need to do or tweak?”

Ouch.  OK, so let me put myself on the record as the only human being in the United States, out of 300 million, who actually feels sorry for Michael Brown.  Imagine what your e-mails—and I know because you e-mail me a lot—would reveal if they were all of a sudden turned over to the public.  I mean, I don't know.  I don't think it's fair to judge a guy on his Blackberry jottings. 

COLGAN:  Tucker, Tucker, I'm sorry, you are dead wrong.  There's two words to describe these e-mails, and that is moral outrage.  You know...

CARLSON:  They are appalling, I agree, they are appalling.  But we all write appalling things in e-mails, because we don't think they are going to be public. 

COLGAN:  No, no.  While people are dying, and amidst speculation that there are rapes, murders, and even mutilations of bodies, you do not ask if there's something to tweak. 

And I will tell you what, Tucker, you are exactly right.  If this wasn't so tragic, this would probably be the best farcical comedy sketch ever put on television.

But let me tell you the thing that's even worse, that's even worse than these Brown e-mails—that is that President Bush continues not to learn his lesson.  He then says after this, oh, I know what I will do.  Let me appoint one of my buddies who writes like they are in eighth grade diary entry, Harriet Miers, to the greatest court in the land.  Oh, and I know, now that we are facing intelligence problems and we know that there's no WMD in Iraq, let me put a donor, an Ohio businessman who gave me $300,000 on an intelligence panel.  Tucker, this is a moral outrage. 

CARLSON:  Look, I am not defending... 

(CROSSTALK)

COLGAN:  And it's cronyism at its worst. 

CARLSON:  I am not defending the Harriet Miers nomination. 

COLGAN:  Sounded like you were.  Sounds like you were defending pretty gross e-mails. 

CARLSON:  No, I am merely saying, look, Michael Brown is a very handy villain.  I was down in New Orleans.  I don't know everything about what went wrong or why, but I do know this was at its core, an act of God.  A hurricane struck, for God's sakes, OK?  The White House didn't send those winds and rain down there.  They happened.  And Michael Brown did not do a very good job, and he got canned, and I am glad he did. 

However, he is not ultimately responsible for everyone who died in New Orleans.  And because he's a bit of a dippy guy and writes these dorky e-mails to his assistant or whatever doesn't mean he is evil.  I don't know, I just feel like if our e-mails, anyone's e-mails, were thrown open to public scrutiny, it would be kind of embarrassing, and I just sort of feel sorry for the guy.  You don't at all? 

COLGAN:  No, I don't feel sorry for him at all.  And Tucker, since you brought up the religious aspect, you know, this is an act of God, God also gave people a conscience and a heart.  And throughout any of these e-mails, I don't see evidence for either.  I think it's absurd.  I think it's appalling.  And I think Brown owes this nation and certainly the people that were affected in Katrina a huge apology.  This is one of the (INAUDIBLE)...

CARLSON:  And more to the point...

COLGAN:  ... federal failures ever seen.

CARLSON:  ... it sounds like he is off your Christmas card list, maybe for good. 

COLGAN:  He was never on it. 

CARLSON:  You're certainly right, and he's not getting on it at this point, it looks like. 

Flavia Colgan, live from Los Angeles tonight, thanks a lot.

COLGAN:  Thank you.

CARLSON:  Stay tuned.  There's still plenty more ahead on THE

SITUATION.

(BEGIN VIDEOTAPE)

CARLSON (voice-over):  A lesson on airport etiquette, why you should think twice before grabbing a security screener's breasts. 

Then, a puzzling '80s flashback that begs the question, why is this guy still playing with a Rubik's Cube? 

UNIDENTIFIED MALE:  It is a random thing, but there's a system to it. 

CARLSON:  Plus, when TV panelists go wild.  Why you should never debate the merits of a conservative Supreme Court with a die-hard liberal. 

And from Chicago, a tear-jerking exhibit of born supremacy.  Parental guidance is suggested. 

It's all ahead on THE SITUATION.

(END VIDEOTAPE)

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  Time for tonight's news quiz. 

A recent occupant of the White House once said, quote, “I have opinions of my own, strong opinions.  But I don't always agree with them.”  Joining me now, a man of many opinions, the Outsider, ESPN radio and HBO boxing host, Max Kellerman, live from Las Vegas tonight.  Max...

MAX KELLERMAN, ESPN RADIO:  Are we talking Gerald Ford recent, or what are we talking about here? 

CARLSON:  I hate to admit it, but there could only be one man. 

KELLERMAN:  George W. Bush? 

CARLSON:  Well, actually, it was his father, George H.W. Bush.  It's inherited. 

All right, first up, a modest proposal from the mayor of your home away from home, Max Kellerman, Las Vegas.  Mayor and our friend, Mayor Oscar Goodman, says anyone caught writing graffiti ought to have their thumb cut off on television.  The mayor made the comment yesterday on the program “Nevada Newsmakers.”  Mayor Goodman went on to say, “I am dead serious.  We have to teach them a lesson.”  This is coming from a criminal defense lawyer. 

Now, what my friend, Oscar Goodman, didn't point out, of course, Max, is he wasn't just a criminal defense lawyer, he was a Mafia criminal defense lawyer. 

KELLERMAN:  Yes, mob lawyer. 

CARLSON:  So in fact, you know, cutting off people's thumbs, you know, it's not so shocking. 

But I am not necessarily against this, because I think graffiti is a big deal.  It hurts everyone.  The famous broken windows theory, which has pretty much been proved at this point, that disorder, the appearance of disorder causes actual disorder.  When a place looks scary, bad people go there and do bad things. 

Graffiti is really a big deal, and it ought to be punished severely. 

KELLERMAN:  Actually, according to freakonomics, and we have debated this before, how Roe v. Wade may have influenced crime patterns, broken windows theory has not been proven to work.  I don't know, it seems logical, but i think that's open to debate. 

Let's put it this way: Oscar Goodman is the same guy who not too long ago told grade school kids that he likes drinking gin, and if he was stranded on a desert island, he'd want—the one thing he would want is like a martini, something like that.  He has said lots of colorful things through the years.  And this is just another one.  He couldn't possibly really mean it.  He is just trying to show you how against graffiti he is. 

But Tucker, it's typical of a politician to address something superficial like graffiti—and there's an argument to be made that it's a form of self-expression, yada, yada—it's not really much damage to public property. 

CARLSON:  You have got to be kidding. 

KELLERMAN:  How much does it damage public property, really? 

CARLSON:  Then why don't you self-express yourself in your own self-area?  I mean, that's so ridiculous.  I am tongue-tied by the absurdity of what you just said. 

KELLERMAN:  For the disenfranchised, Tucker, without a voice.  Let me just say this: Oscar Goodman should be more worried about putting some of the gambling money into the school system in Las Vegas, which is—it's a terrible school system.  Everyone always talks about it.  There is a river of money flowing through this town—I'm in Vegas right now—and less concerned about kids who write graffiti because they are not in that school. 

CARLSON:  I just think destroying other people's property is wrong. 

Oscar Goodman once told me...

KELLERMAN:  I would like points for the Clinton-esque rhetoric. 

CARLSON:  It was not bad.  He once told me he drinks a quart of gin a day, and he's still alive.  That's impressive. 

Well, next up, a case that can only be described as tit for tat.  A 63-year-old woman has been sentenced to a year of probation for responding to an airport pat-down search by grabbing the female screener's breasts and asking, quote, “how would you like it if I did that to you?”  Phyllis Dintenfass was also fined two grand, and ordered to perform 100 hours of community service.  She is a hero, in my mind, Max, for the simple reason:

Airport screeners are not god.  And I think a lot of airport screeners, in my extensive experience with them, are not aware of that fact.  There's a difference, indeed, between airport screener and the Lord Almighty.  And it's important to remember that.

KELLERMAN:  One exists and one doesn't?  I'm sorry, go ahead.

CARLSON:  No.  Debating an atheist really is challenging.  Look, the point is, they believe they have absolute power.  They don't.  They are merely human beings on our payroll.  And if they start pushing you around and getting their grubby mitts on your toothbrush and stuff like that, grabbing your boobs and what not, grab back! 

KELLERMAN:  Well, I have never had mine grabbed by an airport screener, but Tucker, it's the same thing with bouncers.  You know, you put someone in a position of power who generally doesn't experience it in life, maybe they abuse it. 

Let me just say this, post 9/11, I think it's important, and right after 9/11, everyone was very cooperative in airports.  And if that's kind of eroding, that's not a good thing.  We need to be vigilant.  And if someone—if an airport screener is taking their job seriously, I think that's a good signal, not a bad signal. 

CARLSON:  Well, you are right, we do need to be vigilant, not just against terrorists, but against overreaches by government.  Be vigilant, on the lookout for bureaucrats who abuse their power and push people around because they can. 

KELLERMAN:  Yes. 

CARLSON:  We always need to be ready to stand up to them and say, knock it off, you are not god. 

KELLERMAN:  Again, it's the Ben Franklin quote, those who would sacrifice liberty for security deserve neither, or something to that effect. 

CARLSON:  Yes, get none.  I think that's right.

KELLERMAN:  But you know what, Tucker, this is not an example of that.  It's just, look, she is trying to prove a point, she didn't feel like waiting in line, she didn't feel like being molested, and made a deal out of it, and she's only getting probation and a little fine. 

CARLSON:  Someone grabbed her boobs, that's what she gets.  Anyway, Max Kellerman, good luck at the blackjack table tonight. 

KELLERMAN:  Thank you, Tucker. 

CARLSON:  Coming up, we don't know much yet about where Sam Alito stands on issues concerning the Supreme Court, but we sure know a heck of a lot about his taste in coffee.  We will talk live to the owner of Alito's local coffee joint about a hot new flavor called Judge Alito's Bold Justice.  Delicious details ahead.

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  We discussed earlier in the show that Supreme Court nominee Samuel Alito might not be as conservative as many people think.  It's an open question at this point.  One thing we know for sure, though, he's not very conservative about his coffee.  Judge Alito has super strong special blend named after him at his favorite coffee spot in Newark, New Jersey.  It's called Judge Alito's Bold Justice, and it is packed with caffeine. 

Jeff Sommer is the owner of T.M. Ward Coffee Shop in Newark and the creator of the new flavor.  He joins me live in the studio tonight. 

I got to point out, your coffee shop has been there since 1869. 

JEFF SOMMER, T.M. WARD COFFEE SHOP:  That's right. 

CARLSON:  And it sounds excellent.  So, Judge Alito, he is a coffee guy, right? 

SOMMER:  Yeah, definitely.  

CARLSON:  So why'd you name a brand after him?  And when did you do it? 

SOMMER:  It was actually I think 1999, maybe 2000.  His clerks actually kind of came up on this.  They were in on a daily basis, probably for a month, maybe a month and a half, trying different coffees and bringing them back to the office for him.  And...

CARLSON:  He sends his clerk down to get like the perfect cup of coffee? 

SOMMER:  Well, I don't know if he sends him down.  A group of them would come down, and they all would try some different coffees and bring it back to the office, in a thermos pump pot.  So I think they'd have it for the day. 

CARLSON:  So he doesn't mess around.  I mean, he's a coffee guy?  He's like a full-blown addict, he's a junkie.  He needs it? 

SOMMER:  Well, I guess so, yeah, because I mean, he came up with some pretty exotic coffees that are in his blend.  So.

CARLSON:  So what's the blend like? 

SOMMER:  It's a nice blend of coffee.  Big, bold bean.  There's four coffees.  There's actually eight coffees, different beans in it. 

CARLSON:  That's pretty complicated. 

SOMMER:  Yes.  I don't know—I mean, the judge knows the four, but the espresso roast that's put in there also has four different coffees.  So...

CARLSON:  So it's even more complicated than he realizes. 

SOMMER:  Right.  Right. 

CARLSON:  How caffeinated is it? 

SOMMER:  I wouldn't say that it's, you know, any more than your average coffee. 

CARLSON:  So it's moderate? 

SOMMER:  Coffee is pretty consistent. 

CARLSON:  So let me get this right: The coffee is moderate, but it's complex and it's secretive.  There are things you don't know about it? 

SOMMER:  Right.  I guess so. 

CARLSON:  Interesting.  Have you talked to him when he comes into your place? 

SOMMER:  I've met him twice.  He occasionally in there when he comes in, he spends some time, talks to the ladies in the front of the store.  They have a good time with him.  He comes in, you know.

CARLSON:  He talks to the ladies and he has a good time with them.  In a totally appropriate way.

SOMMER:  The judge is here, they say, and they make sure that they prepare his blend of coffee.  And...

CARLSON:  We don't have a lot of information on how the public views him.  I think today the latest poll showed about 50 percent of people supported him.  And a large percentage didn't know what they thought.  This seems to be as good a way as any to determine whether he's going to make the court or not.  Is this a good seller?  Do people buy it?

SOMMER:  Oh, definitely. 

CARLSON:  Really?

SOMMER:  It's a very good seller.

CARLSON:  Would you say it's very popular?

SOMMER:  Yes. 

CARLSON:  So, given your sort of scientific coffee method here, what do you think the odds are he's going to be confirmed? 

SOMMER:  I think he's got a very good chance, I mean, just from the popularity of—people are interested.  People want to know, you know, that a guy—what kind of a guy he is.  And you know, he's a coffee drinker.  He likes the Phillies.

CARLSON:  He can't be all bad.

SOMMER:  Exactly. 

CARLSON:  He likes a complex, moderate blend, and he likes a lot of it. 

SOMMER:  I mean, a lot of people drink coffee, and—yeah, so they can relate to him.

CARLSON:  Jeff Sommer, owner of T.M. Ward Coffee Shop, the oldest in Newark, New Jersey. 

SOMMER:  Right. 

CARLSON:  Also in Chatham, on South Passaic Avenue.  Thanks a lot for joining us. 

SOMMER:  Thank you.

CARLSON:  Thanks.

SOMMER:  All right.

CARLSON:  Still ahead on THE SITUATION, I don't really need to say much about this video.  Just take my word for it: You'll hate yourself forever if you don't stick around to watch Mickey the Monkey's performance on local television today.  He visits “The Cutting Room Floor” next. 

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  You may have noticed we dropped the voicemail segment tonight.  We couldn't resist.  When you have Judge Sam Alito's coffee supplier available to you, something has got to go to make room, so we'll be back tomorrow with voicemails. 

Time now, though, for “The Cutting Room Floor” and the great Willie Geist. 

WILLIE GEIST, THE SITUATION:  The great Willie Geist.  Thank you.  Do you think there's a conflict of interest?  Suppose a case comes to the Supreme Court about T.M. Ward's Coffee Shop in Newark?  He'd have to recuse himself.

CARLSON:  I think there's going to be some—then it could be 4-4. 

GEIST:  Right, I know.

CARLSON:  A sticky judicial situation. 

GEIST:  That's right.  Get on it. 

CARLSON:  Well, it's never too early for children to learn about the agony of defeat.  That's why these babies were entered into the American baby derby in Chicago.  Well, in this particular heat, only one baby responded to the starter's pistol, while others mostly sat and cried.  The winner advanced to the prestigious 'Babies R Us' baby derby finals this weekend. 

GEIST:  Tucker, those other babies are losers.  Look at those losers!  And they're always going to be losers.  Get off the line, you babies!  Look at that. 

You know what I find?  Attacking babies is a good way to win fame. 

CARLSON:  It really is.  Good on.

GEIST:  I'm going after puppies next. 

CARLSON:  Win friends and influence people.  That's you, Willie.

GEIST:  No, congratulations, and they tried hard.  That was good.

CARLSON:  The starter pistol?  That's just unbelievable. 

GEIST:  I don't think there was one.

CARLSON:  Our next story is about a scorned lover and the sweet, sticky revenge she got with some crazy glue.  Gail O'Toole (ph) of Westmoreland County, Pennsylvania invited her ex-boyfriend over under the guise of a possible reconciliation.  You know what that means.  Unfortunately for her boyfriend and for all of our male viewers, there was more to her plan.  When the boyfriend fell asleep, O'Toole glued the man's private parts to his leg, and dumped nail polish on his head.  O'Toole's attorney claims the acts were consensual and part of the couple's, quote, “routine sexual activities.”

GEIST:  Tucker, if that's routine, all I can say is, hats off to your sex life.  Good for you.  And I have to say, there's so much to say here, but the nail polish over the head was a little gratuitous.  Gail, you didn't need that. 

CARLSON:  I think crazy glue and (INAUDIBLE) to...

GEIST:  Well, that's obviously, but the final indignity was nail polish on the head. 

CARLSON:  I think we've got to crack down on these Lorena Bobbitt-like crimes. 

Well, Ai Ai, the Chinese smoking chimp, will always be our favorite primate, but we now have a new soft spot here at THE SITUATION for Mickey the Monkey. 

GEIST:  Or Mikey.

CARLSON:  Or Mikey, whatever.  Let's call him Mikey.  Anyway, he stole the show during a live appearance on our Baltimore affiliate, WBAL, this afternoon.  As anchor Mindy Basara tried mightily to conduct a segment about pets with an animal expert, Mickey—or Mikey or whatever—did everything in his power to distract her.  He banged his feet and fists on the desktop and jumped up and down maniacally.  As she attempted to read questions about pets, the monkey jumped into her lap and grabbed the scripts out of her hands.

GEIST:  Tucker, Mikey didn't take his meds this morning.  That's all I can say about that.

CARLSON:  Down, boy.  The monkey on crack.

Willie Geist.  On that high note, good night.

That's it for THE SITUATION.  Thanks a lot for watching.  Up next, “COUNTDOWN WITH KEITH OLBERMANN.”  See you tomorrow.

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

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