MSNBC Hardball - Transcript
MSNBC Hardball - Transcript
Monday, October 31, 2005
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MATTHEWS: ...Democratic National Committee Chairman, Howard Dean, will be here to discuss that and the Alito nomination and the tactics being used against this nomination. We'll have the latest on the CIA leak investigation later in the show. But first, to talk more about the nomination of Judge Alito, I'm joined now by Senator Ben Nelson, Democrat from Nebraska, and Senator Orrin Hatch, Republican from Utah who sits on the Senate Judiciary Committee.
Let me ask you, Senator Hatch, I know a lot of tactics are used to defeat these nominations. The Democrats are circulating a hit sheet headed by the charge that Sam Alito, the president's nominee for associate justice of the Supreme Court, quote, "embarrassed the government by failing to obtain a crucial Mafia conviction back in '88. He failed to convict the Lucchese family in New Jersey."
Why do you think they lead their attack on him with a charge involving the mob?
SEN. ORRIN HATCH (R), UTAH: I don't know. But if you look at his career, and you look at his career as a judge, he's as tough on crime as anybody we've ever seen.
I don't know what happened in that case, but sometimes cases are difficult to prove.
But let me just say this: That's despicable conduct. That's something that really hits below the belt. It's something that shouldn't happen. And frankly, I'm very upset at any Democrat that would try and throw that kind of stuff around. Alito really is a solid, brilliant jurist who is tough on crime.
MATTHEWS: This hit sheet ignores the fact that within a year he brought a major prosecution to conviction against the Genovese family, knocking down and putting the top guy in the rackets there. And they gave him no credit for that, but yet they point to this acquittal as supposedly significant, as the top issue they raise on this hit sheet they are circulating today, the Democrats.
HATCH: That shows how hysterical some of the Democrats are. They are just shook up that the president has nominated a very, very topflight conservative, a man of brilliance and capacity who has worked in public service for over 30 years now and who has been on the federal bench on the 3rd Circuit Court of Appeals now for 15 years, doing a very good job. One of the most respected judges in the country.
So there's no excuse for that type of irresponsible behavior on the part of some Democrats. I don't know who they, but I hope it's nobody in the Senate.
MATTHEWS: OK. Let me go right now to Senator Nelson.
What do you think about this attack by the Democrats, being circulated by the Democrats today? They put it out within 17 minutes of the nomination this morning, attacking Judge Alito for not being tough enough on the rackets.
SEN. BEN NELSON (D), NEBRASKA: Well, I think that kind of attack just will speak for itself.
But we do want to have a process that's both rigorous and fair, because it's a lifetime appointment. We want to make sure we make no mistakes in putting people on the Supreme Court bench. There will be those who will be overeager, those who will do the attacks. There will be cheerleading and attack dogging, and we've got to expect that.
But at the end of the day, as this unfolds, I think we'll find out more about Judge Alito and we'll be able to make an informed decision about whether or not he should sit on the Supreme Court bench.
MATTHEWS: Senator Hatch, why do you think this is a home run, this nomination?
HATCH: The president said that he would put people on the bench who are strict constructionists and literally will not enact laws from the bench but will interpret the laws as they should and leave the enactment of laws to the elected representatives of the people who have to stand for re-election.
Well, he said he would do that. Alito is a perfect illustration of a conservative jurist who basically believes that judges ought to be humble. They ought to be temperate. And they should not be enacting laws from the bench.
And his whole career has been very much that type of a career. He's
done a terrific job. He's a brilliant guy. This is a Phi Beta Kappa at
Princeton. He was editor of the law journal at Yale. He has the best
credentials that you can possibly have
MATTHEWS: Well, the state of Pennsylvania, the legislature and the governor, decided to pass a law that said a husband had to be consented, had to consent for a wife to have an abortion. That was struck down by his court, but he voted with the minority. He voted in dissent. Do you think that was a reasonable vote on the part of Judge Alito?
HATCH: In that Planned Parenthood v. Casey case, it wasn't that the husband had to give his consent. It was that Pennsylvania passed a law that said that the husband should be notified, that there was a spousal notification procedure. The rest of the court went against that.
And of course, he dissented, because he felt that that wasn't unreasonable law, to expect spouses to be able to give consent to a-or, not consent, but to be notified that the spouse is going to get-the other spouse is going to get an abortion.
MATTHEWS: Do you believe states should be allowed to pass laws requiring husband notification?
HATCH: Well, not anymore, because that's what Planned Parenthood v. Casey says. So, no. And he lost in that particular case, but it was not a big, earth-shaking dissent.
He affirmed the case in part and dissented that, yes, spousal notification was in the realm of reasonability and that still didn't prevent the woman from having an abortion. It just meant she need to explain to her spouse or notify her spouse that she was going to.
MATTHEWS: Senator Nelson, what's your view on the judge's decision? I'm sure it will be the most salient vote he's taken or verdict he's rendered, in dissent in the case of husband notification in the Casey case. Do you think that's going to hurt his nomination chances?
NELSON: I don't know. From my standpoint, when I was governor, I helped get through the Nebraska legislature parental notification. I also a waiting period.
I think the whole question will hinge on what level of judicial or what level of legislative measures can you put on this abortion and what requirements will be there.
I don't know that that's going to hurt him, necessarily. I think what we're going to want to know is does he want to be a judicial activist? Does he want to legislate from the bench? Or does he want to be someone who will make decisions?
It's one thing to pass laws, which is a legislative prerogative. It's another thing for a judge to try to make them.
In this case, I haven't read it yet, but I intend to. But I'm not sure he was trying to be a judicial activist. I think he was simply recognizing the right of the state to put certainly limitations on abortion.
MATTHEWS: Doesn't the Supreme Court always make law? Back in 1973, they said that a woman had a penumbra of privacy around her. That wasn't passed by any legislature of any state. The idea of there's some notion of a penumbra of privacy, it came out of the Griswold case in Connecticut on birth control pills and now it was adopted again in Roe v. Wade. That is making law, isn't it? No legislature ever said there was a penumbra of privacy in any law that I know about.
NELSON: Absolutely. I think everybody has identified that. The question is whether that's what ought to continue with the court.
MATTHEWS: Do you think that Roe v. Wade should be upheld or questioned?
NELSON: That's not-that's not a question for me at this point in time.
I think what the judge needs to do is try to decide what is settled law. And the court needs to try to determine what is settled law. That's the way they ought to decide the cases.
And any kind of judicial review at the appellate level can incidentally involve making law, but it ought not be the prerogative or the intent of anyone going to the bench to try to change the laws that exist today.
Settled law has to be recognized and has to be dealt with. But I think cases will come along, and there's no doubt that there will be some minimal changing of laws as they go forward. That is going to be the question that will be presented to Judge Alito: How do you view that? And how will that affect not only the current situation we're talking about, privacy, but also in other areas of civil rights, et cetera.
MATTHEWS: Let me go to Senator Hatch on this question: Do you believe it's important that the president apparently did not consult with Democrats?
HATCH: He consulted with Democrats.
MATTHEWS: Who did he talk to?
HATCH: When Harriet Miers came up, he consulted with over 70 senators.
MATTHEWS: How about this time?
HATCH: And he asked them about the various people, you know, through his representatives up here, asked them about various people who might be on the bench.
I know they discussed Alito with me and a wide variety of others.
And frankly, the president, he needed to move on this. This is one of those situations where we're coming to the end of this session of Congress, and he had to move on it.
But there will be a lot of consultation. And I have to say, Democrats knew about Alito. I predicted that it would be Alito last Thursday.
MATTHEWS: OK. Harry Reid, the Democratic leader, said he wasn't consulted.
HATCH: You know, consultation to one person may not be consultation to another.
But, be that as it may, the president has a right to nominate and we have a right to advise and consent. I think the question is not whether the president slavishly consulted with Democrats or Republicans. The question is Judge Alito a person who should sit on the United States Supreme Court?
And by gosh, by all purposes and by all reason, he certainly is a person who qualifies for that court.
And by the way, he passed back in 1990 with Democrat support and Democrat praise as a fair, decent and honorable person. He passed unanimously through the Senate. He had the highest recommendation from the American Bar Association. And I suspect that he'll pass through the Senate this time as well.
MATTHEWS: Thank you very much, Senator Orrin Hatch and Senator Ben Nelson.
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