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MSNBC Hardball Special Edition - Transcript

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MSNBC Hardball Special Edition - Transcript
Tuesday, May 24, 2005


MATTHEWS: Good evening. I'm Chris Matthews. Welcome to this special edition of HARDBALL.

As the smoke clears on the filibuster fight, the real issue in the Senate deal on judicial nominees is emerging. And it's abortion. In 1973, the Supreme Court ruled a woman has a right to choose an abortion. That same court could overturn it.

Nine justices with lifetime appointments have the power. That's why the dramatic events surrounding the president's judicial nominees are so important. A Supreme Court vacancy could happen as early as this summer, with Chief Justice William Rehnquist in poor health. And when it does, this new bipartisan deal could affect how the next justice is chosen.

I spoke with Republican Senator George Allen of Virginia late today, and began by asking him why he doesn't like the deal.


SEN. GEORGE ALLEN (R), VIRGINIA: Well, it's a good deal for three nominees who should have been accorded a vote all along. And so it's good for them. But it's certainly not a good deal for, two that have been, in effect, been said, "You're going to get a real nice wake as we toss you overboard at sea."

And for those of us who care about the principle that judicial nominees ought to be accorded the fairness and due process of an up-or-down vote on the Senate floor, this doesn't solve that. And moreover, it doesn't solve the issue and what the rules of engagement will be in the event of a vacancy in the Supreme Court.

MATTHEWS: What do you make of the term "extraordinary?" Do you trust the Democrats to say, "Oh, this guy is a real, you know, whack job. There's no way we can nominate him or confirm him"? Or do you think they might use it on anyone who doesn't agree with them on abortion rights?

ALLEN: I think the latter. And if you look at what they've done with Priscilla Owen, who they're actually now voting on. And here's a person who had unanimous recommendation from the American Bar Association, elected and reelected in Texas. And look at how she was demonized and vilified. Look what they did to Miguel Estrada in the past, because they didn't want to have him on the D.C. Court of Appeals because then he would have the record of performance that the president could actually make the first Hispanic-American appointee to the Supreme Court.

So if you look at their past performance, they're not restricted by the qualifications. These have been well-qualified men and women who've been held up for many years. And you've seen the vilification and the aspersions made against these individuals.

So I think this battle will have to be fought in the future. And I think we need to fight it and fight it, in addition, maybe even before we get to the Supreme Court, on the case of William Myers. William Myers is one those of who, if he's not thrown overboard, he's right on the edge of the boat to be pushed over.


ALLEN: He is nominated to be on the Ninth Circuit Court of Appeals.

That is Exhibit A of a court, an adventurous activist court.

MATTHEWS: That's the San Francisco court. It's...


ALLEN: Yes. And the one that knocked out the Pledge of Allegiance at schools because of the words "under God."

MATTHEWS: It could use some balance, you're saying?

ALLEN: Yes, it should use some-yes, some common sense.

MATTHEWS: Fair and balanced court that isn't there now, right?

ALLEN: Yes, one that actually respects the will of the people.

MATTHEWS: Let me ask you this.

ALLEN: How about that?

MATTHEWS: If it weren't for the abortion rights issue, where the left wants to have abortion rights, the right wants to have it thrown back to the states, would there be this much passion in this fight over the court? Is that the driving passion, the abortion issue? I mean, your party is pro-life. The Democrats are pro-choice. You disagree. It's a fundamental difference.

ALLEN: Yes, there's a difference there, but it's manifesting itself in other cases. You have the Pledge of Allegiance case, striking out because of the words "under God." Recently, you had a court strike down in Nebraska a law that said marriage should be between a man and a woman.

Just this week in New Hampshire, a parental notification bill that parents have to be notified if their young, unwed daughters go through the trauma of an abortion. A federal court has struck down that law.

So there are a variety of issues. And it's one of a feeling that I have, and I think most commonsense conservatives, that judges ought to apply the law, not invent the law. And you ought to respect the values and the will of the people, as expressed through their elected representatives, whether at the state level or at the federal level.

MATTHEWS: The Supreme Court now has two Republican appointees, Clarence Thomas and, of course, Antonin Scalia, that have sat there for years, especially Scalia. Do you believe that the Democrats who committed themselves to only using the filibuster in extraordinary cases will withhold the use of the filibuster if either of these two men are up for chief justice?

ALLEN: I don't know what they'll do necessarily on chief justice. I know that it'll be a heck of a battle royal when it gets to filling that vacancy. The chief justice aspect of it, they may have a big fight over that. But more importantly is the nominee...


MATTHEWS: Well, let me just lay this out. It's fairly obviously, if the president's going to fill the seat of-probably going to retire Rehnquist as chief justice, right?

ALLEN: Right.

MATTHEWS: So that would have to be somebody of stature. It could well be Scalia.

ALLEN: It could be Scalia. It could be Clarence Thomas, or he may go from outside of the court.

MATTHEWS: Right. Do you think any of those cases would be viewed as extraordinary and therefore worthy of a Democratic filibuster?

ALLEN: No, I think it's normal. If you look at-when chief justices retire, they either appoint from within or...

MATTHEWS: Do you trust the other side to keep the deal, to only filibuster in extraordinary cases?

ALLEN: It's going to come down to these seven. And we're going to have to trust them and make sure that their word is good. Now, how do you define "extraordinary circumstances?" It's fairly extraordinary there's a vacancy in the Supreme Court. And so it's such a subjective, vague term.

MATTHEWS: I wonder why...


ALLEN: And so I wouldn't consider it extreme. I wouldn't consider it extreme to have Clarence Thomas or Antonin Scalia as chief justice.

MATTHEWS: But you have got 55 Republicans. If there's a chance that 55 Republicans would vote for somebody, or 51 of them would, or 50 plus the vice president, why would it be so extraordinarily bad appointment? In other words, if the person could get confirmed by a majority of the senators, why does the minority have to withhold the possible use, or hold on to the possible use of the filibuster? If it's extraordinary, both parties would oppose the nomination, wouldn't it?

ALLEN: Well, everything is extraordinary around here. It's a crisis every week. And folks in the real world understand that it needs to be a majority vote. It's not 60 votes. What they're trying to do, in effect, is require a 60-vote margin for any judge. The Constitution does not require that.

In fact, just ten years ago, Joe Lieberman and Tom Harkin were talking how these filibusters were contrary-contrary-to their constitutional duty and responsibility. If they apply this approach, the 60-vote requirement, that would mean in the past that someone like Clarence Thomas would not have gotten on the Supreme Court, and Thurgood Marshall wouldn't have gotten on the Second Circuit Court of Appeals.

Then they carry on, Chris, about "Oh, gosh, things are rancorous here and contentious." Well, gosh, that's the way it is in a representative democracy. It was on Sunday of this week, in 1856, do you know what was going on in the Senate floor? Brooks was caning and clubbing Senator Charles Sumner on the floor of the Senate. So we've had-we're nowhere near what it was in 1856.

MATTHEWS: OK. Let me ask you to repeat six words after me, OK, Senator?

ALLEN: Well, maybe. I'll see what they are.

MATTHEWS: John McCain is a loyal Republican.

ALLEN: John McCain is a loyal Republican.

MATTHEWS: OK, he is?

ALLEN: John McCain is a Republican.

MATTHEWS: Is he a loyal Republican?

ALLEN: I think-I'm not going to get into loyalty. That's...

MATTHEWS: No, no, it's a simple question. Is he a loyal Republican?

ALLEN: He runs as a Republican, so I consider him a loyal Republican. The Republicans are a very broad and diverse party. The challenge for our party is to get all the wings of our party flapping together in the same direction.

MATTHEWS: You sound like Jesse Jackson. Why did you have a hard time saying he was a loyal Republican?

ALLEN: I didn't have a hard time saying it.

MATTHEWS: You hesitate, and you're thinking. The wheels are turning.

ALLEN: Because anytime you want to put words in my mouth, I hesitate.

MATTHEWS: I accept that. Do you think John McCain is a loyal Republican?

ALLEN: I think John McCain is a loyal Republican.

MATTHEWS: Because the reason is that...

ALLEN: He has a choice-John McCain could get elected as an independent, a Democrat, or a Republican. He runs as a Republican. He caucuses with us. I disagree with this agreement. And there are plenty-

I disagree with him on...

MATTHEWS: Do you think he was grandstanding? Was he grandstanding?

ALLEN: Was he grandstanding? No...


MATTHEWS: Was he playing to the press? Was he playing to the independents? Was he playing to the party base?


ALLEN: Well, I think the press-no, the press loves all this sort of stuff. But I think that John McCain was doing what he thought was right. John McCain and I agree on some things, such as not taxing Internet access. On the other hand, when he wants to restrict the freedom of people to express themselves in political campaigns and association, I certainly opposed that, the McCain-Feingold law.

So you know, the reality is, is John McCain has his views on certain issues. Sometimes I agree; sometimes I don't. And you find these odd coalitions on a variety of bills.

When I got elected to the Senate, when I was running for the Senate, and if someone said, "Boy, you and Ron Wyden are really going to team up a lot." I would have said, "What? Ron Wyden?" Well, Ron and I have worked together on Internet taxation, or keeping it from being taxed, making sure this country is a leader in nanotechnology, working against cybersecurity issues.

And so we work on a lot of things together. So you find alliances in different ways in the U.S. Senate. The one thing that one cannot do is compromise principle. And on this judge matter, I feel it is my constitutional duty and responsibility to get off those cushy seats in the U.S. Senate, show some backbone, get off my haunches, and vote yes or vote no. And that's what every senator ought to do.

MATTHEWS: Let me ask you why that fell apart, because I thought, going into Sunday-in fact, I said it on television. I thought the deal would hold. I thought that your party would be able to get 51 or even 50, with the vice president, votes to say up-or-down vote on all court nominees. Why did it come apart?

ALLEN: Well, this group of seven on each side ended up coming up with this compromise, so...


MATTHEWS: But you had the votes, didn't you?

ALLEN: We sure did have the votes. And you know what? A lot of people were geared up for this. And they were running ads on your show and on the radio. And people were all geared up.

And it's like this was a big football game, and 100,000 people are all geared up for it. And you come to the game, and it's football, and because it's drizzling, they call the game, and let six-on-six run for ten minutes. That's not satisfying for people who really were ready to get this issue settled once and for all.

And that has actually been delayed. Now, all of these folks, I think, are very honorable in their motives and their desires. I feel, though, that as a responsibility that I have from the last two years being chairman of the Republican Senate Campaign Committee, recognizing that whether I was in Florida, the Carolinas, South Dakota, Oklahoma, or Alaska, this issue of judges really fired up those who elected us and given us this strong Senate majority.

And all seven, the magnificent seven new members, they all understand what people out there in the real world expect. And they expect senators to vote and not hold up these outstanding nominees.

MATTHEWS: If you guys get double-crossed or screwed by the Democrats, and they vote to-they say it's an extraordinary circumstance and use the filibuster against the president's nominee for the Supreme Court this summer, or later, do you think that your party is ready, geared up, to pass the constitutional option?

ALLEN: We'll have to load up again and prepare for battle. And, yes, I've told the leader. And all of us, I think, who have my point of view is that, in the event that happens again, we have to go with the constitutional option. And I think that some of those out of that 14, or seven Republicans, some of them will join with us, and we'll have the votes to exercise it.

MATTHEWS: Will "I told you so" be a powerful invective against them? ALLEN: Told you so to who?

MATTHEWS: If I tell you-If you say "I told you so" to those seven who bucked your party and broke the deal. You could have done it today. You could have done it today.


MATTHEWS: Will you be able to say, if you lose the-if the Democrats start playing games with you again, won't you be able to say to those seven who cut the deal, "You guys made a mistake. You trusted those guys"?

ALLEN: We'll just have to take the situation as it is. That's what's so disappointing. We had the votes. We could have gotten this settled now and not have to go through all of this in the midst of the Supreme Court vacancy.

And the fact that this has happened, it's happened. We have to go forward, but keep our resolve. And as far as I'm concerned, we need to keep fighting to make sure every one of these nominees who gets out of the Judiciary Committee gets a fair up-or-down vote.

And we are not bound by this deal to throw overboard, whether it's Judge Saad or whether it is William Myers, or any others who have now-there's some speculation and rumors that others, the Democrats feel are-should be subjected to this filibustering and this 60-vote supermajority vote.

MATTHEWS: Senator George Allen of Virginia, thank you.

ALLEN: Great to be with you.

MATTHEWS: I think you might run for president some day. Anyway, thanks for coming on.

ALLEN: Good to be with you.



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