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MSNBC Hardball - Transcript

Location: Washington, DC

MSNBC Hardball - Transcript
Thursday, July 28, 2005


CHRIS MATTHEWS, HOST: Will the fight come from the right on Roe v. Wade in the upcoming Senate confirmation hearings? And the first Iraq veteran runs for Congress, but is he in the battle for his life? Let's play HARDBALL. Good evening. I'm Chris Matthews.

Senate Democrats are on a collision course with the White House over access to John Roberts' documents when he was deputy solicitor general during the first Bush administration. And while most Republicans have fallen in line behind Roberts, Senator Sam Brownback of Kansas, a pro-life member of the Judiciary Committee, has expressed reservations about where Roberts stands on abortion and Roe v. Wade. Senator Brownback, thank you. You met with him, the nominee, earlier this week. Do you think he is sound on-on abortion rights? Where is he?

SEN. SAM BROWNBACK (R), KANSAS: I think that is yet to be seen. I'm in a trust-but-verify stage.

He doesn't have a long written record on this topic. The history has been typically that people, once they go on the courts, they frequently have moved left, if they're not well established on where they are on the positions on some of these key and core issues.

Our meeting was good. I think he sounds quite good. He talks about being more of a strict constructionist on the Constitution, which is something I'm certainly looking for. He talks about an appropriately modest court. But I think we need to see.

MATTHEWS: Senator, would you like to see Roe v. Wade reversed?

BROWNBACK: Yes, I would. And I think you will find that there are a number of legal scholars in this country, from the left and the right, that believe this to be poorly decided, that this was a bad decision. It was poorly decided, not based upon what's in the Constitution and it is something that should be overturned.

MATTHEWS: Are you concerned that John Roberts, the nominee for the Supreme Court, has said that he respects precedent in this regard, that he would, according to the testimony he gave when he was up for the appellate court, that he would consider that settled law?

BROWNBACK: That was a fully appropriate decision for somebody going to the circuit court or the lower federal court, because, in those courts, it is fully settled law.

But when you go on the Supreme Court, cases come up in front of you. And he cannot make a similar position going on to the Supreme Court. There have been over 200 cases that the Supreme Court has overruled a prior opinion upon, Plessy vs. Ferguson. What about Dred Scott? Would we still there be if the court didn't go back and look and say, you know, really, this wasn't appropriate; it was wrong? And they overturned it. That should be reviewed as well in Roe v. Wade.

MATTHEWS: If the Supreme Court were to reverse itself on Roe v. Wade, what would happen?

BROWNBACK: Well, that's the whole point. The beauty of the issue is, it goes back to the states. Then the states take the issue over and then they look at it. And then you're back into a political process where people can look and decide and say, OK, we don't want partial-birth abortion, but we do want to allow it in this circumstance.

We don't want this unborn victims of violence, but we will allow this. And you get it into a system where the people can decide and discuss and it is really where it should be.

MATTHEWS: Could the Congress pass a law supporting the right of a woman to choose an abortion nationwide and have the Supreme Court review that? Could that be another option?

BROWNBACK: That would be another option that could come up. Or people could find and push forward to say, you know, the right to life is inherent as soon as there is conception and that we are going to stand by people and we are going to stand by life and the beauty of life. That could happen as well.

MATTHEWS: Well, what would you do? I mean, we've had experience with prohibition with alcohol. Unless you punish people for drinking it, it's never going to work, because someone will always sell it if it is legal to drink it. Don't you have to punish abortion itself in order to stop people from having them?

BROWNBACK: I don't think...


MATTHEWS: I don't know how do you stop somebody from doing something if they can get away with doing it at no cost to them.


MATTHEWS: If there's a doctor who flunks out of medical school who wants to perform abortions in some downtown area, or whatever, you go to him, what is the risk? Why wouldn't a woman get an abortion, if she wanted one, in those-in those cases?

BROWNBACK: Well, maybe that is something that you have to look at.

But here's what I think you have got to do. You have got to establish a common thought in the country. And that is, is this a life or isn't it? Is it a person or a piece of property? And I think you move on forward from that. And you move this back into the political system at the state level and let the states be able to decide it.


MATTHEWS: If you're going to criminalize...

BROWNBACK: Some states might do that.

MATTHEWS: If you're going to criminalize abortion, you're going to put people in jail for having them or for performing them, right, one or the other.

BROWNBACK: Will that happen in California? If you remove Roe v. Wade, then California decides its own abortion law. Are they going to criminalize this? I doubt that that would take place. There may be other states, say, Louisiana, in the country...

MATTHEWS: How about Kansas? What would your state do?

BROWNBACK: I think they would probably put some limits on abortion.


MATTHEWS: Would they criminalize the performance of an abortion?

BROWNBACK: They may well do that. But that would be up for the state legislature to decide and the political process, which is where it was prior to 1973. And people were relatively satisfied prior to that period of time. And that's where it should be. That's the whole issue about having a modest court that doesn't go in to everything.

MATTHEWS: But the implications, the reason the court went toward Roe v. Wade-and I don't have any position here. I'm just asking consequences.

If you reverse that decision about a woman's right to an abortion under the federal law, you go back to the states, and then states have to make up their mind. And I'm just wondering how states would prevent people from having abortions. You punish the doctor? Well, the doctors take a risk in performing the abortion, because the patient can still get the abortion. They choose either to go in state to an illegal doctor or out of state to a legal doctor. Isn't that a choice that's almost frivolous?

BROWNBACK: I don't think it is frivolous at all. And this is-you're talking about the political system of the United States. And that's exactly where it should be.

It should be in a place where people can decide, and if they agree with their state legislature, fine. If they don't, then vote them out of office, instead of...


BROWNBACK: ... of it.

MATTHEWS: What would stop a person from going to another state?

BROWNBACK: What stopped it prior to 1973? And were people complaining about it forever at that point in time? I don't think so.

And they were far more satisfied and feel like that they had a part in the system than what is taking place today.

MATTHEWS: Why don't the liberals agree with you? Why don't they want to have it as part of a-of a democratic process and a voting process?


BROWNBACK: You are seeing more and more liberal commentators, liberal legal scholars, saying, look, it was poorly decided. This notion of a right to privacy weaved out of three constitutional amendments that create a penumbra right. Many legal scholars are saying this is just not here in the Constitution.

A number of legal-or liberal political commentators are saying this has been bad for the liberal movement, because it federalized an issue and caused a lot of push of conservatism into the federal system that would not have been there had this not been in place.

MATTHEWS: I think you're putting a lot of pressure on the Supreme Court. I agree with you. And let me ask you. Do you think you will vote for John Roberts?

BROWNBACK: Probably. But, as I say, I'm going to trust but verify. I want to see how he comments. I want to see how he testifies and what does he say about some of these key issues of the day.

I don't think he's going to comment on the issues, but he should comment about what is the role of the courts in the culture and the society today. And the Constitution, is it a living document or is it a textual document?

MATTHEWS: Hillary Clinton has been saying nice things about this fellow. Is there any chance you would both vote for the same nominee for the Supreme Court, you and Hillary Clinton?

BROWNBACK: I think there is a chance of that. But I-I find it doubtful. I think you're going to find a number of hard-core people, particularly on the left, will end up maybe saying good things because he's highly qualified, but not vote for him.

MATTHEWS: So, it will be probably, what, 70/30 for a confirmation?

BROWNBACK: Let's see. Let's see.

MATTHEWS: OK. I think so.

Anyway, thank you, Senator Sam Brownback.

BROWNBACK: Thank you, Chris.


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