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MSNBC Hardball - Transcript

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MSNBC Hardball - Transcript
Tuesday, July 12, 2005

BREAK IN TRANSCRIPT

MATTHEWS: President Bush began discussions today with Senate leaders from both parties on the vacancy left by Sandra Day O'Connor in the Supreme Court. Both sides say they're hopeful the president will nominate someone who they consider will be a uniter, not a divider.

We're joined by a key Democrat on the Senate Judiciary Committee, Senator Joe Biden of Delaware.

Senator, what is the thing you're looking for in a court nominee for the president?

SEN. JOSEPH BIDEN (D), DELAWARE: I think we're looking for somebody that doesn't come with an ideological brief, someone who has an open mind, whether it's a person like the Justice Powell or Blackmun or someone like-and they were conservative Republicans-or someone like Sandra Day O'Connor.

And, by the way, it doesn't have to be Sandra Day O'Connor, doesn't have the same views, but someone who, Chris, comes to the court without a brief, in effect, with-with-with an open mind and not a closed ideology.

MATTHEWS: If someone who the president nominates has made a statement that they don't like the Roe v. Wade decision, which gave a woman a right to an abortion back in '73, would that be a disqualifier?

BIDEN: Not-no, not in and of itself.

I want to know how they view-and I'm going to sound like a lawyer now-but how they view the liberty clause of the 14th Amendment, which was the basis upon which that decision was made in part. You know, look, all the important elements of the Constitution are-that remain in controversy-are all those phrases that don't lend themselves to an easy definition, like liberty in the 14th Amendment, like the takings clause of the 15 Amendment.

And what I want to know is what their sort of-their constitutional methodology is. When they're dealing with those vague sometimes phrases, or (INAUDIBLE) phrases, how do they go about deciding what it means?

MATTHEWS: Is it essential, Senator, that the nominee, for you to vote to confirm, believe in the role of precedent?

BIDEN: No.

It is useful for me to know-for example, when we had that-that was a major issue in the Bork nomination. Bork came along and argued that there were a half-a-dozen fundamental decisions, from the incorporation doctrine to the Griswold case that-Connecticut vs. Griswold-that were wrongly decided and should be overturned or he would consider overturning.

That is pretty radical departure from the previous 70 years of jurisprudence. Someone like that, with those kinds of judgments that would take us back to the pre-Lochner era, would be a disqualifier for me.

MATTHEWS: The Griswold case was the beginning of the belief that there's a constitutional right to privacy.

BIDEN: Correct.

MATTHEWS: If a nominee were to sit before you on the Judiciary Committee and say, I don't really believe there's a constitutional right to privacy, would that be a disqualifier?

BIDEN: Probably. But let me-let me-this is-you're asking some very important and difficult questions.

If in fact they argued that, there was no-that there could be-there are no rights that were constitutionally guaranteed that were not articulated, stated explicitly in the Constitution, that would be a disqualifier for me. Most of-if 99 percent of all the-well, 95 percent of the justices over the last 70 or 80 years have argued that there are some unenumerated rights, like the right to privacy, like the right of privacy.

But the school of thought that Mr. Bork, who is a brilliant fellow, argued was, there can be no constitutionally guaranteed right unless it is enumerated, stated in the Constitution. That is a cabined view of the Constitution, inconsistent with what I believe a correct reading of the Constitution is and what our founders intended.

MATTHEWS: Would you be equally tough on a liberal nominee who believed that the state, in the words of Justice Stevens, I believe, should not take-the government should not take a position for or against religion or religion, in other words, to be totally, utterly agnostic?

BIDEN: Well, no. That wouldn't-because, look, here-let's put it this way.

The separation of church and state doctrine has guided this country the past 225 years, which hasn't changed in any fundamental way from Thomas Jefferson's time to now, has served this nation incredibly well. Just look around the world to all those nations that decided to infuse religion into their political and governmental discourse. It's not a very good track record.

So, I-you know, what Ronald Reagan used to say, if it ain't broke, don't fix it. I say my rosaries. I care about my religion. It is important to me. It is-I'm a practicing Catholic. But the notion that my religious rights and my view are best protected by the Supreme Court of the United States of America and the government not getting involved in choosing religion, one religion over another.

We are a-as a nation, we've always been able to recognize the existence of a deity, just not pick sides.

MATTHEWS: Well, what about under God in the Pledge of Allegiance?

BIDEN: Not a single problem.

MATTHEWS: Would you support a judge who wanted to get rid of it?

BIDEN: I would find-no, probably not.

And the reason I wouldn't, it wouldn't be because of that particular decision. It would be because I think he-I would wonder about how he could have arrived at that reading of the Constitution. Where does it say in the establishment clause of the Constitution that this nation does not recognize a deity?

I believe the establishment clause, which is the one that said you can have no established religion in the First Amendment, I believe that means just that. You cannot favor one belief or nonbelief over another belief. And-but the notion that recognizing the existence of a deity is totally consistent with, in my view, a proper reading to the Constitution and has been for, as I said, two centuries.

MATTHEWS: Well, fortunately, Judge Stevens doesn't have to go before you for confirmation, because, in his dissent the other day, in one of those cases involving the Ten Commandments, he said, the government should not take a position for religion against irreligion in the most general sense. He sounds like wants...

BIDEN: Well, that's true. But it is religion. It is not a deity.

MATTHEWS: And-no, religion per se.

BIDEN: Per se. Religion per se means a specific belief, not whether or not there is a supreme being. That's a different deal. That's spirituality.

MATTHEWS: Let's come down on the-let's come down on the more mundane question of the president's chief political adviser in the White House.

BIDEN: OK. I'm just glad I'm not him today.

MATTHEWS: Well, do you believe that he's done something wrong?

BIDEN: Well, I know he's done something wrong, based on what he stated.

It is totally inappropriate. Whether it is criminally wrong is another question. I'll let the Justice Department make that judgment. But for him to make the distinction that it has no difference, to say, I never mentioned Valerie Plame's name. I did mention, as I understand it from the press accounts-I may be wrong-from the press accounts I've seen, he has indicated that he said Ambassador Wilson's wife is a member of the CIA.

That to me is a distinction without any difference, Chris, any difference, whether he states her name or not. It is like saying, you know, that guy who does HARDBALL, the guy with that full shock of hair who knows what he's talking about, that guy out there is the guy I think that works for the CIA.

MATTHEWS: Well, suppose...

BIDEN: I didn't mention your name.

MATTHEWS: Suppose you were the president's top political adviser and you heard that the vice president was being blamed for sending somebody off on a trip to Africa and ignoring the results, which came back negative, and therefore was responsible for getting something in the State of the Union about nuclear that shouldn't have been there. And you wanted to make it clear to the opposition and the press that this wasn't vice president. This was some middle-level person at the CIA that sent Joe Wilson to Africa. How would you have done it without saying it was his wife?

BIDEN: It's not his role to do it, period. Let the president and the vice president figure that out. It's not his role to make that judgment. As my grandfather Finnegan would say, who died and left him boss?

MATTHEWS: Well, he's a staffer.

BIDEN: He's a staffer. Yes.

MATTHEWS: And he may have been carrying out the will of the people there. Who knows.

BIDEN: Well, that may be. Now, that is a different deal.

MATTHEWS: Yes.

BIDEN: That's even more consequential to me. If he was carrying out the request of the president of the United States or the vice president, we have got a real problem.

MATTHEWS: The-the-one of the results of the last election is that the Congress is in the hands of the president's party, Senator, as you know so well, having been through these cycles.

BIDEN: I've noticed...

(CROSSTALK)

(LAUGHTER)

MATTHEWS: You have noticed. So, you don't have subpoena power in the opposition.

BIDEN: No.

MATTHEWS: If you folks on the Democratic side had subpoena power now, the ability to call witnesses under oath, would you be calling up Karl Rove and finding out what happened?

BIDEN: Sure. Sure.

And it seems to me any responsible legislative organization would do that. Look, this is a Republican United States Senate. But it is worrisome to me that there is very little oversight here. Where are all the hearings on the issues that are of great consequence to the American people, from foreign policy straight through to matters like this?

I mean, look, we do not work for the president, Chris. I admire the president. I have respect for the president. But the presidency is a co-equal, not more important, co-equal branch of the government. The reason why those founders were talking about in terms of the court, the reason why they set it up this way is so no one outfit could have so much power. And we have an obligation.

MATTHEWS: We'll be back with Senator Joe Biden of Delaware, ranking Democrat on Judiciary and Foreign Relations, when HARDBALL comes back, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS: We're back with Senator Joe Biden of the Judiciary Committee.

Senator, just to get back to the point here with the Karl Rove issue, it all centers on the question of whether Saddam Hussein had nuclear weapons and whether he was trafficking in nuclear materials to build those weapons. And Joe Wilson, the ambassador, was sent down there to the government of Niger in Africa to find out whether there was a deal going on. And he came back and said there wasn't. Somehow, that didn't get to the president, that information, because it showed up in his State of the Union that they were, in fact, that Saddam Hussein was in fact buying nuclear weapons, nuclear materials from this government down there.

Do you think this is a big deal?

BIDEN: Well, I mean, the big deal he released the name-or the identity, or a big deal it didn't get in the State of the Union?

I think it is a big deal it didn't get in the State of the Union, because the idea that no one else who scrubbed that speech, from the national security adviser to the chief of staff to all the people there, didn't know that. Now, look, this administration prides itself on its discipline and on its rigor and on the president being a delegator, a la corporate style. It does surprise me. And I think it is a big deal that false information got into the State of the Union.

MATTHEWS: Well, this is where it gets tricky, because the vice president himself, Dick Cheney, was the one who raised the issue with the CIA. He said this on "Meet the Press." He was the one that raised the issue with them about this possible trafficking in nuclear materials with the government of Niger.

They subsequently send the ambassador on that trip. He comes back and reports. And the vice president himself gets to review the State of the Union and he and his people left it in. They left in the nuclear piece.

BIDEN: Surprise, surprise.

MATTHEWS: How do you explain that?

BIDEN: Surprise, surprise.

He's the same guy, Chris, the vice president, that is, who said that Saddam Hussein had reconstituted his nuclear weapons. He said that on "Meet the Press." And I was on a sister show at the time. They asked me at the time. I said, I saw no evidence, zero evidence of that.

MATTHEWS: Well, he did say-to correct you, Senator, he did say

ยท he corrected himself subsequently and said he meant their nuclear program, not the nuclear weapons.

BIDEN: Well, let me tell you, he did not say that that day.

MATTHEWS: No.

Let me ask you about Karl Rove and the president of the United States. Do you think the president was wrong to say he would deal with anybody who leaked and then not deal with him?

BIDEN: Well, I think-I assume the president hasn't finally decided not to deal with him yet. Look, the president is a strong guy. One of the president's greatest suits is that he not only stands by his friends, but he stands by his word.

MATTHEWS: Well, there's a conflict here, isn't there?

BIDEN: Well, so far.

But, again, in fairness to the president and Karl Rove, this thing is only breaking now. I don't know. I-I'm not being solicitous. I probably don't know as much about this as you do, Chris, at this moment.

MATTHEWS: Yes. I don't know much.

Let me ask you this, Senator. Do you think the Democrats wish they had a guy as good as Rove?

BIDEN: Oh, yes, absolutely. But I-hopefully-yes. Yes.

MATTHEWS: Thank you, Senator Joe Biden.

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http://www.msnbc.msn.com/id/8551784/

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