MSNBC ""Hardball With Chris Matthews" - Transcript

Interview

MSNBC ""Hardball With Chris Matthews" - Transcript

MSNBC "HARDBALL WITH CHRIS MATTHEWS" INTERVIEW WITH SENATOR BENJAMIN CARDIN (D-MD); PATRICK BUCHANAN, MSNBC POLITICAL ANALYST

SUBJECT: JUSTICE SOUTER'S RETIREMENT

INTERVIEWER: CHRIS MATTHEWS

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MR. MATTHEWS: Now to go to two people that know something about (the retirement of Justice David Souter), Senator Ben Cardin of Maryland, who sits on the Judiciary Committee, and MSNBC political analyst Pat Buchanan.

Senator Cardin, do you think we live in a time where we still have sort of implicit quotas for these jobs? You know, you and I grew up in a country where you had something called the Jewish seat; Frankfurter, before that Brandeis and Cardozo. And that sort of drifted away after Fortas and that problem. Then we had the black seat with Thurgood Marshall, and that sort of drifted away when we got a conservative African-American on there, Clarence Thomas.

Are we going to still try to find people to fit these molds?

SEN. CARDIN: No, I don't think so, Chris. There's only nine justices. I think the president is going to look for the very best person he can find. This clearly is an issue that he's going to take personal interest in. I heard you talking about lists. The only list that matters is the list that he's looking at. And I think he's going to try to find the very best person he can, because, after all, this is a critical position. We're talking about how the Supreme Court could perhaps (have ?) critical decisions.

So I think he wants somebody who has a real passion for the Constitution. President Obama taught criminal law, constitutional law, as a professor. I think he's going to look for someone in that mode.

MR. MATTHEWS: What's wrong with picking someone who's not a legal scholar, picking somebody with obviously a law degree but who's had a more practical experience in life? The president himself as a candidate said that he was looking for someone who's had some real life experience. Here he was, by the way -- well, let's go with that thought, just the idea of picking somebody with real life experience, not who's lived in chambers most of their life.

SEN. CARDIN: I don't think there's any formula as to who the person should be or what the background is, whether the person is involved in a political life or an academic life. I think you want to try to get the very best person. I don't think he'll have any specific formula of any particular law school or it has to be a judge.

MR. MATTHEWS: Pat, let's talk about it. You're a conservative. What do you think? Do you think he's got -- is he afraid, or he's ready to pick a leader? We've had the experience -- what I like is these guys got it wrong in the old days. Frankfurter turned out to be a conservative. FDR thought he'd picked a liberal. Ike picked Earl Warren; said it was the worst decision he ever made in his life because he picked a liberal.

With the paper trail today, with all this studying of people's documents, are we still going to have any more serendipity anymore, or is it all going to go the direction these guys program it?

MR. BUCHANAN: You're not going to have serendipity. Warren -- he also picked Brennan; Ike did. Nixon picked Harry Blackmun. We thought he was a conservative. Look, George -- I mean, Gerald Ford picked who? John Paul Stevens, the most liberal member of the court.

Reagan began to get it right and George W. Bush did get it right. I see Barack Obama -- Chris, I think what he ought to pick is basically a liberal Democrat John Roberts, who has real stature and presses people; maybe even gets Republican votes.

But I think what he will do is I think he's going to go for a minority, a woman, and/or a Hispanic, because I think he sees that as their turn. Nixon was looking for an Italian way back when, you know.

MR. MATTHEWS: He was. He was looking for Scalia by name, by culture.

MR. BUCHANAN: Oh, he was telling me -- I don't know if -- he was looking for an Italian and a southerner. And I think Barack Obama will be looking for a woman and an Hispanic especially, because that's a tremendously broad section of the electorate, growing hugely; went for him 2 to 1. But again, he ought to go for someone who is really conspicuously highly qualified.

MR. MATTHEWS: Okay, let me go to the senator on that.

Senator Cardin, this is such touchy territory, and I know we all know this, because we're talking about, to some extent, identity politics and groups. And they all have their legitimate desire to have a piece of the pie, and it's always part of these discussions; let's be honest.

SEN. CARDIN: Right, sure.

MR. MATTHEWS: But if you start getting too much into sort of the simultaneous equation, where you say it must be an Hispanic, must be a woman, therefore must be from the Southwest, and you find yourself picking somebody by formula, and then you go, "Wait a minute; were they really the best pick?" and can the president really say that Clarence Thomas was the best pick, or did you just want an African- American conservative who was reliably Republican in his thinking? And after a while you begin to think, "Well, wait a minute. This was a formula. He was picking out somebody he wanted to program, basically.

SEN. CARDIN: We don't know how many appointments the president is going to get to the Supreme Court. This may be his only one. You just don't know. He's got to pick the very best. It's not by what interest group you might be behind. Look, whoever he appoints, there's going to be people who are going to be upset because he didn't pick from their special interest. He's got to pick the very best. There's only nine in the court. He can't say it has to be filling a particular spot. There's just not -- it's too important.

MR. BUCHANAN: Let me disagree with the senator to this extent. He will have to pick, from his own standpoint, somebody who's going to uphold Roe v. Wade, because if he picks someone who joins Scalia and the others to overturn that, he would have a real political disaster on his hands.

I think these folks are better vetted these days. He's going to pick himself a solid liberal who will be solid down the line, just like Souter was. But the question is the stature gap. I think -- here's the thing, Chris. He's sending a message to America with this appointment.

People are looking at it to say -- is he going to pick somebody like John Roberts, who, whether you agree with him or not, that guy is a young chief justice? Is he going up that high? I think he's got to do that. But at the same time, I do think the political considerations are going to pull him very hard.

MR. MATTHEWS: Well, let's take a look at -- here's the president today talking about the -- here he is talking about the kind of person, Senator, he's looking for to replace Justice Souter, who announced today that he's going to retire.

PRESIDENT BARACK OBAMA: (From videotape.) Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as president. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

MR. MATTHEWS: Well, here's President Obama when he was a candidate, just before Election Day, with NBC's Brian Williams. Let's listen.

PRESIDENT OBAMA: (From videotape.) I mean, the right to marry who you please isn't in the Constitution. But I think all of us assume that if a state decided to pass a law saying, Brian, you can't marry the woman you love, that you'd think that was unconstitutional. Well, where does that come from? I think it comes from a right to privacy that may not be listed in the Constitution but is implied by the structure of the Constitution.

MR. MATTHEWS: Senator Cardin, it looks to me like he's getting into very tricky territory there with the Lawrence decision. Is he saying basically there might be a Supreme Court justice he's looking for, he picks, who could see in the Constitution some inherent right to same-sex marriage?

SEN. CARDIN: Well, look, as we pointed out, these are lifetime --

MR. MATTHEWS: That sounds like what he's saying. He couldn't be saying anything else, if you ask me.

SEN. CARDIN: Look, I think he wants to find someone who has respect for legal precedent, who has an understanding of the Constitution, and the importance of the Constitution in protecting our most vulnerable, particularly against the actions of government. That's what he's looking for, and I think that's what a lot of us in the United States Senate are going to be questioning.

But remember, once this person is confirmed, no one knows how they're going to rule on individual cases. We've seen that historically; it's difficult to predict. But we want somebody who has a passion for the Constitution.

MR. BUCHANAN: Let me disagree with the senator to this extent. I think the idea of looking out for the vulnerable and all the rest of it, that is the job of elected legislators and executives who decide on laws.

SEN. CARDIN: Not under our Constitution.

MR. BUCHANAN: All right, under the Supreme Court -- my view of the Supreme Court justice, he should lay down the law that's been passed by the Congress and signed by the -- (inaudible). Does it comply and comport with the Constitution of the United States, or does it violate it? This is the real difference between liberals and conservatives, Chris. We believe that's what a judge does. It's a narrow role; that these changes in society, social and all the others, they should be done by people we elect.

MR. MATTHEWS: That's where you guys disagree. Senator, you disagree with that.

SEN. CARDIN: Well, I think the courts have to enforce the Constitution. I think that's important, including rights of privacy, including the rights that poor people have for counsel. Those are issues that need to be enforced by our courts when the legislature doesn't act.

MR. MATTHEWS: Okay, there's the issue right there. You just heard the divide between a liberal interpretation of the Constitution, which the justices from that side will render, and the strict constructionists. By the way, Pat, where in the U.S. Constitution does it provide for an air force?

MR. BUCHANAN: Well, that's what the -- to provide the common defense.

MR. MATTHEWS: No, it provides for --

MR. BUCHANAN: And then you answer --

MR. MATTHEWS: -- a navy.

MR. BUCHANAN: You provide for the common defense -- an army, a navy -- the Army Air Corps.

MR. MATTHEWS: Senator, last thought. I don't see the air force in there.

MR. BUCHANAN: The Army Air Corps. (Laughs.)

MR. MATTHEWS: I think they've got to use their brains.

SEN. CARDIN: It's what your interests are.

MR. MATTHEWS: Okay, thank you, sir. Thank you very much, Senator Ben Cardin of the Judiciary Committee --

SEN. CARDIN: Thank you.

MR. MATTHEWS: -- and also a great senator from Maryland, and Pat Buchanan, who holds no office but his portfolio is broad.

END.

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