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MATTHEWS: Back to HARDBALL. That was, of course, Supreme Court nominee Elena Kagan facing some tough questioning today from Republican senator Jeff Sessions during day two of her confirmation hearings. Democratic senator Arlen Specter sits on the Judiciary Committee and voted against Kagan"s confirmation as solicitor general when he was a Republican. How will he vote this time? A great question.
Senator Specter, it"s an amazing thing because you"re right in the middle of it, sort of in the middle. There"s the culture war in America, these guys from Texas and Alabama and Arizona, you know, Kyl the other day saying she"s a West Side Manhattan liberal, and this stuff about the military--is she just a voodoo doll for Obama? Is that what"s going on here, that the conservative Republicans are using her to bash the president on cultural issues?
SEN. ARLEN SPECTER (D-PA), JUDICIARY COMMITTEE: Well, there"s an element of that. But the more fundamental question, Chris, is that the Supreme Court is an ideological battleground. They"re fighting the cultural wars there.
And the concern that I have, and expressed in my questioning today, is that the Court has taken a lot of the power away from Congress. The Court is doing a lot of legislating. They are supposed to defer to Congress. We have a 100,000-page record, and they have set a hundred years of precedence by allowing corporations to make political contributions, so that the Court is taking over a lot of our legislative function in many, many cases.
And then when the executive, when the president asserts his authority, as he did with the warrantless wiretaps, the Court ducks the case, the terrorist surveillance program. And our Constitution is based on separation of powers, and this Court has allowed a concentration of powers and they"ve taking it from Congress, means they"re taking it from the people. And that"s what I"m concerned about.
MATTHEWS: Do you think--without getting too conspiratorial about it, do you think there"s been a concerted effort by Republican and people on the ideological right, Heritage Foundation, whatever--I"m not sure which institution--to groom these candidates, starting with Clarence Thomas, finding people that seem to have clean records and using them to become almost automatons because this Court seems to have so few surprises anymore on the right. They come in the way you expect them. They serve the way you expect them. And they operate in lockstep, almost like synchronized swimmers on the court, these five guys--or four, at least.
SPECTER: No, Chris, I don"t think there are any conspiracies.
I used to be a district attorney. You know that. And I don"t charge conspiracies unless--unless I can prove them. But you have a fellow like Chief Justice Roberts, who says that he"s going to be deferential to Congress fact-finding, that that is the legislation function, and courts ought not to do that, that he says he"s not going to jolt the system, that he"s going to be modest, he comes in.
Now, listen, I don"t challenge his good faith. And I know there"s a difference between what he says in a Senate Judiciary Committee hearing and deciding a case in controversy in the court. But I don"t think anybody has to go out and find a John Roberts. I think he"s there.
And I think the president has a pick of a lot of people who are smart people. And they decide cases with a very heavy emphasis on people with powerful connections. That"s the result.
MATTHEWS: Well, let"s go to this the critique that she offered of the hearing. Years ago, or a while ago, the candidate, the nominee, are saying that these are vacuity, these are vacuous exercises.
And I do think, starting with, well, Clarence Thomas--I happen to know that he was schooled by people like Ken Duberstein in keeping certain parts of their thinking processes from you, because they were too philosophical and therefore perhaps dangerous on the court, that these Sherpas, like Anita Dunn and Ken Duberstein are skilled at teaching these nominees how to cloak themselves to keep their politics to themselves during these processes.
Are we really getting a good look at these nominees?
SPECTER: Well, the Senate lets them get away with it.
In her article, she quotes Biden and me as objecting to what"s happened and quotes my statement that one day the Senate is going to stand up, as I put it, and she quoted me, on its hind legs and reject a nominee. And we did reject Bork. We rejected Bork because he was way out of the midstream.
But the Senate has to be a lot tougher in the questions. And when my turn came today, I cited her article, and I was looking for substantive answers. And I challenged her on some of the Supreme Court standards, which, as even as Scalia said, is a way of asserting judicial legislation.
So, we"re still in midstream with her, but I will say this for her, Chris. She"s been a lot more forthcoming than have been most. She was willing to pick up the cudgel on televising Supreme Court hearings.
And I think, if the Supreme Court was televised, and if the people understood what was going on, that they decide the cutting-edge issues of the day, that they would be a lot more responsible.
MATTHEWS: Are you going to vote for Kagan?
SPECTER: I"m thinking about it. You don"t expect me to make a declaration...
MATTHEWS: I know--I know you"re not.
SPECTER: ... standing--standing--standing on...
SPECTER: ... on HARDBALL.
MATTHEWS: OK. Let me ask you an easier one.
SPECTER: Throw me a softball instead.
MATTHEWS: OK. OK. I will throw you a softball.
Are you going to vote for Sestak?
SPECTER: Yes. Yes.
MATTHEWS: OK. Well, maybe we made some news. You"re a real Democrat now. You"re a tried-and-true Democrat now.
SPECTER: Listen, Chris, I said on election night that I would support the winner. I don"t make any bones about it. And I don"t beat around the bush when it"s the thing to do.
MATTHEWS: you know, I think Toomey is going to beat him right now.
What do you think?
SPECTER: Well, I think it"s going to be...
MATTHEWS: Right now.
SPECTER: It"s going to be--well, right now, there"s no election. And there"s a long time between now and then. But it"s going to be a battle.
They are--they are polar opposites. My only comment would be, let"s see what they have to say and who has the better approach. I believe that Toomey is so far to the right that he will defeat himself, ultimately, if the people understand where he"s coming from, providing you don"t have just a total attitude of throw all the rascals in, getting rid of incumbents.
SPECTER: And Sestak is an incumbent. And Sestak does represent part of the Congress.
So, the waters are very tricky. I have been around a while. And so have you, Chris. And neither of us have seen anything like what"s going on now. The question was, what are people against? Washington, incumbency, the government, all three?
So, if you"re a part of Washington, you have got a big burden to overcome, but Toomey being so far to the right, that that will determine it.
MATTHEWS: I think you"re dead right. If people knew how far right he was, they wouldn"t be voting for him in most cases. But it"s right. I think the atmosphere is so toxic for anybody who looks like an incumbent.
Boy, I think I agree with you on everything you said.
Thank you, Arlen Specter, senator from Pennsylvania.
SPECTER: Great being with you, Chris. Thank you.
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