MSNBC Hardball - Transcript

MSNBC Hardball - Transcript
Tuesday, May 24, 2005

CHRIS MATTHEWS, HOST: Blowback. For every force, expect a counterforce. Who is going to suffer for this bipartisan deal on filibusters?

Let's play HARDBALL.

Hot time in the town tonight. Good evening. I'm Chris Matthews.

Senator John McCain is taking serious heat from conservative groups over his 11th-hour deal to preserve the filibuster. Meanwhile, Republican Leader Bill Frist warns that the nuclear option to ban judicial filibusters remains at the ready.
In a moment, Senator Trent Lott will be here to talk about what he thinks of his seven Republican colleagues who cut this compromise. And later, Tony Perkins of the Family Research Council and Kim Gandy of the National Organization for Women will be here to talk about why the deal is causing so much anger from both the right and the left.

But, first, the Senate voted today 81-18 to end the debate over one of President Bush's judicial nominees, Priscilla Owen, paving the way for her nomination. Senator Joe Biden of Delaware, the ranking Democrat on the Judiciary Committee, was one of those 18 who opposed ending the debate over Justice Owen.

I spoke with Senator Biden earlier today and began by asking him what he thought of the deal that those seven Republicans and seven Democrats cooked up.


SEN. JOSEPH BIDEN (D), DELAWARE: I think it was fine. It avoided a showdown that I was not sure we could win. Had we lost the showdown, had we lost the filibuster, I think the nation would have been damaged. The function of the Senate would have been altered. So I think it was-it was fine.

MATTHEWS: If you like the deal, why did you vote against cloture today on the Priscilla Owen nomination?

BIDEN: Well, because I find that it is much harder to explain why you change your vote than why you keep your vote the way it was. I voted against cloture before on her. Had there been-had I been part of that deal, I told them I would vote for Priscilla Owen, but I could not bring myself to vote for any cloture on Janice Rogers Brown and Mr. Pryor, who I do think are extreme. I don't think that Priscilla Owen is particularly extreme. I think she is not a good choice, but I don't think she's extreme.

MATTHEWS: What do you think is the challenge facing those who put together this bipartisan deal? When do you think booby traps are going to occur, the hazards of keeping the deal?

BIDEN: Well, I think that will depend an awful lot upon the president on one hand and the interest groups in both parties on the other hand.

If the president does what Clinton did in a clearly divided Senate, in a divided country, if he sends up mainstream people, like Clinton did-remember, Clinton, the man that Republicans loved to hate, he sent up two nominees that got over 97 votes, each of them. The president can find solid, solid conservatives who will get overwhelming support in the United States Senate.

But if he decides to stretch the envelope and pick, for example-he won't-but a Douglas Ginsburg, who writes about the Constitution in exile and we should move back to the pre-1935 reading of the various clauses of the Constitution, then, then it is engaged and then that puts the Republicans, the seven, in a tough spot if Democrats filibuster.

Conversely, if in fact he sends up someone who is mainstream, but not supportive of Roe-and I know some people think that's an oxymoron-and that's going to-the interest groups are going to put a lot of pressure on the Democrat to say, no, no, no, that person is an exceptional case and therefore you should filibuster. I think it depends upon who get sent.

MATTHEWS: Nancy Keenan of NARAL, the national abortion rights group, said: "We are confident that a Supreme Court nominee who won't even state a position on Roe v. Wade is the kind of extraordinary circumstance this deal envisions."

In other words, anyone who won't even state their position on Roe v. Wade is extraordinary and therefore, would have to be filibustered.

BIDEN: Well, quite frankly, probably two-thirds of the judges on the Supreme Court took that exact position during their hearings. I think it is less important that they state where they are in Roe v. Wade than how they explain their position on the liberty clause of the 14th Amendment, which is the basis upon which Roe vs. Wade rests.

Whenever you ask a justice or a nominee their position on a particular case, they always have the option of saying, that may come before me again and I do not want to prejudice my view. And that has some weight. So, I don't think the 14 people who signed on an agreement are necessarily ones who would think that would be one of those extraordinary circumstances.

MATTHEWS: Let me suggest a scenario for later this summer. Justice Rehnquist resigns from the Supreme Court because of health reasons. To fill the vacancy of chief justice, the president puts up the name of associate Justice Antonin Scalia, who was, by the way, confirmed by 98-0 when he was up for associate justice. He offers to replace him with his attorney general, Alberto Gonzales, for obviously good reasons and political reasons.

Those two nominations together, do you think they constitute an extraordinary circumstance? Or are they the kind of people you just mentioned, who may be against the Roe vs. Wade, but are certainly, certainly unexceptionally OK in terms of competence?

BIDEN: Well, look, extraordinary circumstances are going to be in the minds of the 14 people. I would think that they are not extraordinary, like if they sent up Janice Rogers Brown for example, who says that the-that the-that the jurisprudence that found the New Deal constitutional was a triumph of socialism over the Constitution. That's extraordinary.

That-if they send up people who really look for a fundamentally different reading of the takings clause of the Fifth Amendment, the nondelegation doctrine, all these complicated constitutional theories that most people don't know much about, but will radically alter their lives.

You know, remember, it was a 5-4 decision that found the Social Security system constitutional. There are groups of people out there among the conservative right, those who talk about this Constitution in exile stuff, who really believe that the four people who said that the Social Security system was unconstitutional were correct.

Send someone like that up, you have an extraordinary circumstance, I think.

MATTHEWS: OK. On Monday, I asked Senator McCain about the Democrats' use of the filibuster. And let's take a look at what Senator McCain said last night.


MATTHEWS: Have the Democrats learned their lesson, that it's better to only use this thing occasionally in extraordinary circumstances?

SEN. JOHN MCCAIN (R), ARIZONA: I think so. I think the Democrats realized they abused the process with the filibustering last year. And that's why we were able to make this agreement.


MATTHEWS: So, is he right? Is Senator McCain right in saying the Democrats have learned their lesson not to overdue these filibusters?

BIDEN: I think he is. I didn't vote for all these filibusters. And I made the case that I thought they should be used only and within a different context exceptional circumstances.

And when you filibuster circuit court nominees, it has to be really extraordinary because of the doctrine of stare decisis, which says, hey, look, I am a circuit court of appeal judge, may have a view that you don't like, Senator, but I will abide by what the Supreme Court says. I've generally taken those people at their word, assuming they have the judicial temperament to be on the bench.

And so, it was more than had been done before.

MATTHEWS: Is the abortion rights issue what drives all the passion about this issue of the judgeships?

BIDEN: Well, it does on the extremes. It doesn't for guys like me. It doesn't for the vast majority of us, who are worried about the loss of the right for extended debate.

But, I mean, I'm-look, I'm going to get in trouble for saying this. If you asked me to list the 10 most important issues facing us in America, I would not list abortion as in the top 10. There's a lot of other changes that can take place in the court that will radically alter our lives in a fundamental way, without any state recourse or without any congressional recourse.

I do not want to see the decision changed. But if it is changed, you would find 35 states tomorrow providing for the same kind of protection Roe v. Wade does. But if you change this thing called the nondelegation doctrine to say the EPA can't determine what is clean air and clean water, then what you've done is, you've condemned my kids to an environment where the powerful will determine the outcome of their health, fundamentally different issues. One is able to be partially rectified, at least. The other can't be rectified at all.

MATTHEWS: Would the Senate vote differently if it could vote in secrecy, absent the knowledge, without letting the pressure groups know how senators are voting?

BIDEN: I think a few would. I think they would, not so much on the judges, as they would on Mr. Bolton, for example. I have no doubt, if there were a secret ballot on Bolton, he would not get 40 votes in the Senate.

MATTHEWS: I love the way you say Bolton.


MATTHEWS: Anyway, let me ask you about...

BIDEN: Mr. Bolton.

MATTHEWS: Let me ask you about some other issues.

It's been said that one of the advantages of this deal made last night is, it frees up the calendar. Instead of having a summer of regret and the remorse and anger about what happened...


MATTHEWS: ... that Harry Reid will allow the regular order to continue. The Democrats will continue to vote on issues like Social Security, like issues like the energy bill and things like that, and the Bolton nomination. Do you think that that's true?

BIDEN: Yes, I do think that's true.

MATTHEWS: And that's good for the republic?

BIDEN: I think it is good for the republic.

Look, we have a lot of really, really, really important problems to deal with. We still have a war going on in Iraq that, in all due respect, the administration is not conducting as well as it could. We have a circumstance we're trying to figure out what we're going to do with Iran. We have a problem with regard to this gigantic and awesome deficit. You just saw where Chairman Grassley said he is going to-he is going to support doing away with the-this minimum tax requirement. They're going to change it.

Well, that's a $600 billion hole in the budget. We have giant problems here. And we should get about the business of dealing with them.

MATTHEWS: OK. It's great having you on, Senator Joe Biden of Delaware.

BIDEN: Thanks.

MATTHEWS: Ranking Democrat on the Judiciary Committee.