The Rachel Maddow Show, Transcript 05/27/09

Guests:
Mark McKinnon, Thomas Goldstein, Jonathan Alter, Ana Marie Cox, Kent Jones
Transcript:

RACHEL MADDOW, HOST:  Thank you at home as well for staying with us for the next hour.

We are going to be doing FBI “Wiretap Theater” on the show tonight, which may very well be a total technical disaster, but it should be fun even if that is the case.

Mark McKinnon, as Keith said, a good friend and former adviser to George W. Bush and John McCain, will join us in just a moment.  Jonathan Alter will be here, as well, Ana Marie Cox.

It is all coming up over the course of the next hour.

But we begin with the escalating fight over the future of the United States Supreme Court.  It‘s been a day and a half since Judge Sonia Sotomayor was introduced to the country as President Obama‘s first Supreme Court nominee.

Criticism of her from the right started immediately from conservative advocacy groups.  It then picked up steam among conservative commentators and is now coming from elected Republican leaders and those who aspire to be elected Republican leaders someday.

Republican Senator John Ensign, for example, issued a statement calling into question the summa cum laude Princeton graduate‘s intelligence, saying, quote, “I will work with my colleagues and thoroughly review Judge Sotomayor‘s record to make sure she has the right intellect.”

Republican Senator James Inhofe of Oklahoma issued a statement expressing his concerns about the nominee and saying the Senate needed to assess, quote, “her ability to rule fairly without undue influence from her own personal race, gender or political preferences.”  Yes, I remember Inhofe grilling Sam Alito about whether he saw things as too much as a man, about whether him being white was going to affect his judgment too much.

Non-elected Republicans have gone a few steps lower with their attacks.  For example, here‘s former senior advisor to President Bush, Karl Rove.

(BEGIN VIDEO CLIP)

KARL ROVE, FMR. BUSH SR. ADVISOR:  I‘m not really certain how intellectually strong she will be.  She has not been very strong in the second circuit.  She‘s not liked by her colleagues.  She‘s not particularly respected by her colleagues.

(END VIDEO CLIP)

MADDOW:  Mr. Rove followed up that appearance with a debate last night at New York City‘s Radio City Music Hall at which the moderator, Charlie Rose, asserted that Judge Sotomayor was smart.  Mr. Rove responded, quote, “Not necessarily.  I know lots of stupid people who went to Ivy League schools.”

Former Republican Congressman Tom Tancredo was one of many Republicans to pounce on Judge Sotomayor‘s statement that her background as a Latina gives her a different perspective than judges who are white and male.  Mr.  Tancredo blasted that statement on MSNBC‘s “THE ED SHOW” yesterday.

(BEGIN VIDEO CLIP, “THE ED SHOW”/MSNBC)

FMR. REP. TOM TANCREDO, ® COLORADO:  I‘m telling you, she appears to be a racist.  She said things that are racist in any other context—that‘s exactly how we would portray it and there‘s no one that would get on the Supreme Court saying a thing like that, except for an Hispanic woman.

(END VIDEO CLIP)

MADDOW:  Which is why how all those other Hispanic women judges got there as well.  Free pass.

Former Republican House speaker, Newt Gingrich, chose to make his contribution to the “Hispanic woman judge is racist” derby by Twitter.  He said, quote, “White man racist nominee would be forced to withdraw.  Latina woman racist should also withdraw.”

Between calling her stupid and racist, her critics on the right have also found time to criticize Judge Sotomayor as just plain unqualified, as someone who is taking away a job that maybe rightfully would be held by another white guy.

Here‘s the executive director of the conservative organization, the Committee for Justice.

(BEGIN AUDIO CLIP)

CURT LEVEY, COMMITTEE FOR JUSTICE EXECUTIVE DIRECTOR:  This is someone who clearly was picked because she‘s a woman and Hispanic, not because she‘s the best qualified.  I could certainly see red and purple state Democrats balking at it and she may very well have to withdraw her nomination.

(END AUDIO CLIP)

MADDOW:  She‘ll have to withdraw.

Echoing the notion that she was only picked because she was Hispanic was MSNBC political analyst, Pat Buchanan, affectionately known here as “Uncle Pat.”

(BEGIN VIDEO CLIP, “HARDBALL”/MSNBC)

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  She is also an affirmative action pick, Chris.  Clearly, the president was down to four choices—all four of them women—and he picked the Hispanic.

(END VIDEO CLIP)

MADDOW:  Taking that line of attack to its extreme was conservative talk radio host and FOX News host, as well, Glenn Beck.

(BEGIN AUDIO CLIP)

GLENN BECK, CONSERVATIVE TALK RADIO HOST:  They‘re just like, “Hey, Hispanic chick lady!  You‘re empathetic?  She says, “Yes.”  They say, “You‘re in.”  That‘s the way it really works.

(END AUDIO CLIP)

MADDOW:  That‘s the way it really works.  I have been wondering.

This is the character, thus far, of the opposition from the right to Sonia Sotomayor.  Will it work?  Will calling her stupid and racist and Hispanic chick lady stop her from getting this job?  Probably not.

Barring something unforeseen, Judge Sotomayor appears to have the votes she‘s going to need to get through.  That‘s not secret information.  That is Washington common wisdom.  It is plainly evident to everyone involved.

So the second question is: Why do this?  And that‘s a calculation about political capital.  If you think you spend political capital by attacking a judicial nominee—it doesn‘t seem like much use to waste that capital on someone who everybody thinks is going to get confirmed any way.  If on the other hand, you think that you build up your political capital, you build up your political profile, you increase your political power by attacking a nominee—then it makes sense to come after a Sonia Sotomayor with both political barrels.

And then, it makes sense to ask: What kind of Republican Party and what kind of conservative movement is this fight building?

Joining us now is Mark McKinnon, former media adviser for President George W. Bush and adviser to Senator John McCain.  He‘s now a contributor to “The Daily Beast.”

Mr. McKinnon, thank you so much for being here.

MARK MCKINNON, REPUBLICAN STRATEGIST:  Thanks for having me on, Rachel.

MADDOW:  Let me ask you about the sort of premise of my analysis here

.

               

MCKINNON:  Sure.

MADDOW:  . which is that Judge Sotomayor is probably going to be confirmed no matter what the criticism, unless something that we don‘t know about now comes to light.  Do you think that‘s an appropriate assumption?

MCKINNON:  Well, not only it‘s an assumption, the minority leader of jurisdiction, Jeff Sessions, said that he thinks that she‘ll probably be confirmed, that there won‘t be a filibuster, and that there‘s a good chance he could end up voting for her.  And so, yes, I think it‘s very likely that she will be confirmed.

I just think that this is a classic example—you know, in politics in both parties, there‘s just a reflex to shoot at anything that moves.  And wouldn‘t it be refreshing if just for once, a nominee, a Supreme Court nominee like this gets named who clearly is qualified, strong credentials, nominated by a former Republican president—wouldn‘t it be nice if just for once, a political party and members of that party just salute and say, “You know what, nice play.”?  And I could say the same thing about Justice Roberts when he was picked, and the Democratic response to him.

But the Republican Party right now is clawing its way to the bottom.  It got 23 percent of the American electorate supporting them, seen as a sort of, you know, bitter, partisan party right now, and sort of anti-immigrant, anti-Hispanic.  And I just think that this sends a lot of the wrong signals to independents and soft Republican voters out there who are leaving the party in droves.

MADDOW:  And you say that as a Republican, as someone who loves the Republican Party.

MCKINNON:  I say it as a proud Republican and, you know, as a progressive and moderate Republican.  But I, you know, I would just hope that there‘s room for us still.  But there‘s a lot of voices in the party that seem to be crowding and shouting us out and shouting us down all the time.

MADDOW:  Well, let me ask you about one of those crowding and shouting incidents right now that‘s making—that‘s having—that‘s been getting a lot of attention and that is, the attacks on Colin Powell and—I don‘t care so much about the attacks on Colin Powell from Rush Limbaugh because I feel like Mr. Limbaugh is sort of it‘s his own—it‘s his own dynamic.

But there have been very sharp attacks against him from former Vice President Dick Cheney.  Mr. Cheney sort of dialed that back a little built in an interview on CNBC.

MCKINNON:  Right.  I was glad to see that.

MADDOW:  They have had this back-and-forth.  What do you—what do you make about that?  What do you make of that?

MCKINNON:  Well, at the very least, there‘s—by the way, I was glad to see Dick Cheney did dial that back today and explained his comments, he said he was sorry, he thought he had left the party and was glad to learn that he hadn‘t.

But nevertheless, there‘s been a lot of bad body language toward people like Colin Powell and Colin Powell specifically in the party, sort of suggesting that, you know, unless you swallow the hard-right Republican orthodoxy, that, you know, that there‘s not room for you.

And, you know, listen, a four-star general, former secretary of state, head of the Joint Chiefs of Staff, if we don‘t have room for Colin Powell, then, you know, we are on our way to permanent minority status forever.

MADDOW:  Well, the mystery here for me, though, is that nobody‘s been standing up for Colin Powell.  I mean, you just did.  But that‘s not actually been part of this dynamic.

MCKINNON:  Yes, it‘s pretty lonely out here, I‘m afraid.

MADDOW:  It really is.  And it seems like, I know that Colin Powell endorsed Barack Obama and I realize that is a political sin that he committed in the eyes of some Republicans, just as it would be on the Democratic side if you‘d had somebody of his stature endorsed the Republican nominee.  But it‘s striking to me that really, nobody is backing him up.  And I wonder if that‘s because the attacks are coming from Dick Cheney, people don‘t want to cross Dick Cheney or if Colin Powell really doesn‘t have friends in the party.

MCKINNON:  I think he does and I think there are lots and lots of Republicans, like me, who are moderate and feel like they want a home in the Republican Party, feel it‘s the right place to be, but they are greatly concerned about the fact that they don‘t see more people come to the defense of people like Colin Powell.

But, anecdotally, I have lots of Republican friends who say, “I love Colin Powell.”  You know, we need more Colin Powells.  You know, we‘re losing Republicans in the northeast and a lot of parts of the country.

MADDOW:  But I don‘t want to criticize Dick Cheney, is that the other side of it?  Or .

MCKINNON:  I don‘t know.  I just think that the voices on the Republican far right have just become incredibly amplified and sort of dominating the party right now.  And there‘s going to be a struggle over the next four or eight years to see—you know, that‘s a healthy debate and a good one to have.  And I remember the Democrats having the same debate eight years ago.

MADDOW:  Yes.

MCKINNON:  So, it‘s part of the physics in politics.

MADDOW:  Mark, the elephant in the living room here, which is a bad pun, given what we‘re talking about.  Is that while the former Vice President dick Cheney is sort of everywhere, the former president, President Bush, is really nowhere.  Not only no public appearances but no comment on any of this stuff.

MCKINNON:  Yes.

MADDOW:  I know you‘ve known him for a very long time.  Do you expect him to weigh in?  Do you think he cares about this fight?

MCKINNON:  I don‘t expect him to weigh in.  He is a genuinely gracious and decent man—regardless of what you think about his politics.  And he is committed to saying “off the radar screen and out of the president‘s business.”  You know, he just thinks, it is protocol for a past president to remain in the past and not get—and not step into the middle of the business of the current president.

He genuinely has a fondness and respect for President Obama.  I think it was mutual that they develop that mutual respect through the transition process.  And he genuinely hopes that Barack Obama is a successful president.

MADDOW:  Do you think that he feels that protocol extends to the vice presidency as well?  Could he be somebody to rein in Dick Cheney either on protocol or politics?

MCKINNON:  I don‘t know.  I don‘t know.  And I haven‘t had that conversation with him.  So—and if I had, I probably wouldn‘t tell you any way.

(LAUGHTER)

MADDOW:  That‘s right.  Of course, everybody is wondering.  We all were curious about their dynamics in the White House, while they were in office, and they‘ve taken such different approaches since they left office.  It‘s just one of those great unknowns right now.

Mark McKinnon, former adviser to President Bush and Senator McCain, contributor now to “The Daily Beast”—it‘s really nice of you to come in.  Nice to see you.  Thanks.

MCKINNON:  My pleasure.  Thanks for having me on.

MADDOW:  One of the political spit wads that has been hurled at Judge Sonia Sotomayor from the right recently is that she is unfit for the Supreme Court because her court decisions have been reversed too often by the Supreme Court.  Is that true?  We shall un-spit and un-spin that particular spit wad in just a moment.

(COMMERCIAL BREAK)

MADDOW:  All-time baseball great, Ted Williams, once said that baseball is the only field of endeavor where a man can succeed three times out of 10 and be considered a good performer.  And the splendid splinter was almost right—hitting .300 in baseball the traditional benchmark of excellence.

However, there is another field of endeavor in which a 30 percent success rate is really quite good, that would be being a judge on the U.S.  Court of Appeals.  The U.S. Supreme Court reverses appeals court decisions about 75 percent of the time—meaning than an appeals court judge like, say, Judge Sotomayor, can hit .250 and be considered to be doing just fine.

Why is that important to understand?  Because even without the baseball analogy, it is a big problem for one of the arguments against Judge Sotomayor‘s confirmation as a Supreme Court justice.  A “Washington Times” headline screams, quote, “Sotomayor reversed 60 percent by high court.”

And the FOX News Channel took the argument straight to the White House briefing room.

(BEGIN VIDEO CLIP, TUESDAY)

MAJOR GARRETT, FOX NEWS:  Is a nominee‘s history of opinions and reversals a relevant factor for the public and the Senate?

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  Well, I think it is one of the many factors that likely will be picked over and weighed as we go through this.

GARRETT:  How has the White House evaluated Judge Sotomayor‘s record on this score?

GIBBS:  Well, I think—I think if one were to create 380 opinions and have three reversed—

GARRETT:  What‘s the Supreme Court ratio?

GIBBS:  You tell me.

GARRETT:  Six opinions, three reversals.

GIBBS:  Well, Major, don‘t just judge—I wouldn‘t judge you on the stories I call you about.  I might judge you on the full package of your repertoire.

(END VIDEO CLIP)

MADDOW:  What Press Secretary Robert Gibbs could have told Mr. Garrett from FOX, if he wanted to get all schoolhouse rock on him is something like this.  Here‘s the Supreme Court.  Supremes get sent about 8,000 cases a year.  They only pick about 80 of them to actually hear.  That‘s a rate of about 1 percent.

Where do those 80 or so cases come from?  A vast majority of them, about 70 of the 80, come from the courts that are jut one level down from the Supreme Court, those are the federal appeals courts.  They‘re called the U.S. Circuit Courts of Appeals.

Judge Sotomayor served 11 years on the Second Circuit Court of Appeals.  She wrote nearly 400 published opinions.  She was involved in about 3,000 cases.

As a circuit court judge, only six of her cases ended up being heard by the Supreme Court.  Five of them have been decided so far.  One is still pending.  Three were reversed.

On average, you know, they reverse about 75 percent of the time.  So, her reversal rate is actually way better than average.

Looked at from even a broader lens, if you consider that the Supreme Court only reversed three out of her 380-some-odd decisions, you could call her success rate about 99.21 percent—which means she‘s batting .992.  That‘s an argument to not put her in the lineup?

Joining us now is Thomas Goldstein, a lawyer who has argued 21 cases before the U.S. Supreme Court.  He‘s a lecturer at Stanford and Harvard law schools, and he‘s founder of the very influential blog, SCOTUSblog, which covers the court.

Mr. Goldstein, thank you very much for joining us.

THOMAS GOLDSTEIN, HAS ARGUED 21 CASES BEFORE SUPREME COURT:  Oh, it‘s great to be here.

MADDOW:  I know nobody does batting averages for judges really—but aside from that, did I sort of get that explanation right?

GOLDSTEIN:  So far, I think you‘ve got the numbers down.

MADDOW:  OK.  What do you think of the overall idea of using reversal rates as a basis for evaluating whether a judge is any good or not?

GOLDSTEIN:  I don‘t think it really tells you much at all.  You ought to read the decisions and decide whether or not the judge got it right.  You will see why the Supreme Court reversed in the cases they did.

You know, this is just one of a whole series of attacks.  Your last guest talked about attacks on John Roberts and Sam Alito.  So, imagine the following—if I told you that Sam Alito, who is regarded by conservatives and by a lot of people, including me, as a really good judge.  His reversal rate was 100 percent—every opinion that he wrote that was reviewed by the Supreme Court was reversed.  Now, that‘s—he was reviewed twice and they were both reversed.  It doesn‘t tell you anything.

The much more important numbers are the ones you talk about.  So, she had 3,000 cases and gets reversed three times.  That‘s actually just objectively really impressive.  There‘s nothing in her reversals that suggest that the Supreme Court thinks she‘s not up to the task or doing a bad job.

The other thing you ought to look at is, OK, when she gets reversed, where does she sit versus Justice Souter, who she is replacing.  Is she to his left?  And that doesn‘t play out either.

In the two sort of biggest cases, the Supreme Court was five-to-four and six-to-three on ideological lines, conservatives and liberals, and she ended up right where Justice Souter is.  Those are hard cases and the fact that John Roberts is more conservative than Sonia Sotomayor isn‘t, you know, brilliant insight to anybody.  But what matters is that she seems to be completely in the mainstream of left of the court.

MADDOW:  In terms of Judge Sotomayor‘s opinion overall, I know you‘ve tried to look at those appellate opinions, tried to figure out sort of where to categorize her ideologically.  There‘s some sense about that that can you get from those cases on which she was reversed at the Supreme Court.

But overall—in terms of her appellate record—do you think she‘s going to end up roughly where Souter is, ideologically speaking?  Is it appropriate to think about judges on an ideological number line like that?

GOLDSTEIN:  Well, you have to find some way of trying to categorize people, if you‘re trying to just make sense and kind of broad brush ways.  And I think that she is a lot like Justice Souter in a lot of areas.  I think there are areas where she‘s going to be more conservative than him.  I think that there are criminal law questions in particular where she‘s been a little bit more inclined towards the government.

You never know.  People change when they get to the Supreme Court some of the time.  But she‘s certainly not going to be on the left wing of the Supreme Court.  She‘s going to be where he is, where Justice Ginsburg is, where Justice Breyer is, in that group of four.

MADDOW:  It is possible that she—I mean, again, it‘s impossible to predict exactly how people are going to behave as Supreme Court judges.  David Souter, of course, is the best modern example for making that case.  But it seems possible from my reading of SCOTUSblog, which I‘ve been doing religiously over this entire—over this entire debate, it seems possible that the court may move to the right with her, just as it seems possible that it may move to the left, right?

GOLDSTEIN:  That‘s right.  One thing that is not possible to believe, I think, is that the conservatives who are really gunning for her right now are right, that she is a liberal ideologue, that she‘s outside the box, that she‘s not up to the task, not intelligent enough, that she managed to sneak through graduating number one or two at Princeton, and just tricking everybody, I guess.

She has a lot of respect.  She is a Democratic appointee to the Supreme Court, that means she‘s going to be more liberal than a George Bush appointee, but it hardly makes her a radical.

MADDOW:  Thomas Goldstein, attorney, founder of SCOTUSblog, which I believe is a national treasure—thank you very much for your time tonight and thanks for your work to educate us all about the court.

GOLDSTEIN:  Sounds great.

MADDOW:  Appreciate it.

GOLDSTEIN:  Thank you so much.

MADDOW:  As Republicans in Washington try to calculate the political profit and loss for fighting over the president‘s first Supreme Court nominee, the other fight on which they have recently been looking for traction is opposing the decision to close Guantanamo.  On this fight, though, they‘re up against not just President Obama but also noted, reckless liberals, like Defense Secretary Bob Gates, General David Petraeus and chairman of the Joint Chiefs of Staff, Admiral Mike Mullen.  Whoops!  Maybe picked wrong fight?

(COMMERCIAL BREAK)

MADDOW:  Coming up: We present FBI “Wiretap Theater,” starring Roland Burris, Rod Blagojevich‘s brother, and an open seat in the U.S. Senate recently vacated by Barack Obama.  And later on, Kent Jones explains to me the whole “Jon & Kate Plus 8” thing, which I confess I don‘t really get but I really want to.

All right.  First, though, it‘s time for one big fat holy mackerel story in today‘s news.

This man is David Boies.  He is a famous lawyer associated with Democratic causes.  In the Supreme Court case that picked our 43rd president, Bush v. Gore, Mr. Boies represented Gore.

Representing Bush in that case was this man—Ted Olson.  Olson only represented Bush in Bush v. Gore; he was Bush‘s solicitor general for his first term.  Before that, Mr. Olson had worked in Reagan‘s Justice Department and defended Reagan during the Iran/Contra scandal.  He served in board of the uber-conservative, Clinton conspiracy theorist magazine, “The American Spectator.”

He was literally at the very first meeting of the uber-uber-conservative legal organization, the Federalist Society.  Ted Olson is the platonic form of the conservative Republican Party stalwart lawyer.

And these two men, David Boies and Ted Olson, have filed a lawsuit together—challenging California‘s Proposition 8, which rescinded same-sex marriage rights in that state.  Ted Olson and David Boies are on the same side in this case, both in favor of gay marriage rights.

Here‘s how Mr. Olson explains his position, quote, “It‘s our position in this case that Proposition 8 denies federal constitutional rights under the equal protection and due process clauses of the Constitution.  The Constitution protects individual rights that cannot be taken away by a vote.  We believe that denying individuals in this category, the right to lasting, loving relationships through marriage is a denial to them on an impermissible basis of the rights that the rest of us enjoy.”

At this point you‘re probably thinking—is this some sort of ploy?  Is Ted Olson working on this gay marriage case as some sort of inside-out-backwards way of getting gay marriage ruled unconstitutional at the federal level or something?  Where is this coming from?

Well, Mr. Olson says his work on behalf of gay rights in California is not only his legal view, it‘s his personal view as well.

(BEGIN VIDEO CLIP)

TED OLSON, FORMER U.S. SOLICITOR GENERAL:  For too long, gay men and lesbians who seek stable, committed, loving relationships within the institution of marriage have been denied that fundamental right.

(END VIDEO CLIP)

MADDOW:  Ted Olson, of course, was solicitor general when the Bush administration endorsed amending the U.S. Constitution to ban gay marriage.  Olson now tells “The Advocate” magazine that although he was personally against the administration‘s position on that matter at that time, he said nothing in public to protest the decision.

Mr. Olson‘s stance, of course, also puts in sharp relief the fact that the Democratic president now, Barack Obama, is still against gay marriage, even as he promises to be a fierce advocate for gay rights and even as Republicans like Ted Olson and John McCain‘s campaign manager, Steve Schmidt have come out in favor of same-sex marriage rights.

The lawsuit filed by Olson and Boies seeks an immediate injunction against Proposition 8 in California until the case is settled.  Six California officials are named as defendants, including Governor Arnold Schwarzenegger and Attorney General Jerry Brown.

No matter which side wins at the district court level, this case will probably be appealed all the way to the Supreme Court, where Ted Olson alone has argued cases 55 times.

Ted Olson and David Boies on the same side—talk about your opposite marriage.

(COMMERCIAL BREAK)

MADDOW:  In the last three years, in the wake of the Bush-Cheney administration and the McCain-Palin campaign, the Republican Party has lost control of the White House, lost control of the House of Representatives, and lost control of the Senate. 

Without any agreed upon national leadership or any clear agreement among its own members about a policy agenda for moving forward, the GOP has tried to focus itself by focusing opposition on specific policies of the new Democratic president. 

The Obama administration continuing the Bush administration‘s bailout, that‘s been one.  That‘s been awkward, because Bush, after all, started it. 

The Obama administration stimulus package, that‘s been awkward because of basic macroeconomics. 

The first Obama administration‘s first Supreme Court nominee?  Good luck with the opposition on that one, you guys. 

And then there‘s the issue of closing the prison at Guantanamo, which was quite recently a bipartisan, almost consensus position.  President Bush said he wanted Guantanamo closed.  Senator McCain campaigns on the pledge to close it.  President Obama did order that it be closed down. 

Belatedly, the Republican leadership in the United States Senate decided that despite its bipartisan origins they would see if they could pick a fight, a political fight, on closing Guantanamo. 

And that may have been a shrewd political calculation when they were able to frame that fight as Republicans versus President Obama. 

What it‘s actually turning out to be is Republicans verse President Obama and Defense Secretary Bob Gates and General David Petraeus and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen, which makes the political calculation here maybe a little less should shrewd. 

Secretary Gates made his position on the issue very clear on “The Today Show” this past Friday. 

(BEGIN VIDEO CLIP)

ROBERT GATES, U.S. DEFENSE SECRETARY:  The truth is, it‘s probably one of the finest prisons in the world today.  But it has a taint.  It is the name itself is a condemnation. 

What the president was saying is this will be an advertisement for Al Qaeda as long as it‘s open. 

There‘s a lot of fear-mongering about this.  We‘ve never had an escape form a Supermax prison, and that‘s where these guys will go.  And if not one of the existing ones, we‘ll create a new one. 

(END VIDEO CLIP)

MADDOW:  That looked a lot like strike one for the political wisdom of Republicans picking a fight on Guantanamo. 

For strike two, we turn to General David Petraeus in his interview on Radio Free Europe on Sunday. 

(BEGIN VIDEO CLIP)

GEN. DAVID PETRAEUS, COMMANDER, U.S. CENTRAL COMMAND:  With respect to Guantanamo, I think the closure in a responsible manner sends an important message to the world, as does the commitment to the United States to observe the Geneva Convention when it comes to the treatment of detainees.

(END VIDEO CLIP)

MADDOW:  If you‘re keeping track at home, don‘t forget, that was the man whose name was fondly floated not long ago by Republicans as a 2012 dream candidate.  That‘s him telling them they‘re wrong about Guantanamo. 

Bad strategy strike three comes courtesy the chairman of the Joint Chiefs of Staff. 

(BEGIN VIDEO CLIP)

ADM. MIKE MULLEN, CHAIRMAN, JOINT CHIEFS OF STAFF:  I‘d advocated for a long time now that it needs to be closed.  The concern I‘ve had about Guantanamo in these wars is it has been a symbol, and one which has been a recruiting symbol for those extremists and jihadists who would fight us. 

So, and I think, that centers, that is at the heart of the concern for Guantanamo‘s continued existence, in which I spoke to a few years ago, we need to close it. 

(END VIDEO CLIP)

MADDOW:  You know, but, hey, who needs the support of your country‘s top military officers when debating stuff like military detention policy? 

In today‘s “Washington Times,” Republican Senator James Inhofe of Oklahoma continued the Republicans‘ fight against the military on the subject, arguing, quote, “Americans don‘t want Gitmo‘s terrorists in their neighborhoods.” 

Yes, who knows?  Senator Inhofe may in fact be building up a very small constituency of support among Americans whose neighborhoods are inside solitary confinement cells in Supermax federal prisons. 

On the other hand, he‘s 0-3 so far for support from major U.S.  military officers. 

Joining us now is Jonathan Alter, MSNBC political analyst and senior editor at “Newsweek.” John, thanks very much for coming on the show. 

JONATHAN ALTER, “NEWSWEEK”:  Hi, Rachel. 

MADDOW:  Quantify the difference for me between Republicans verse Obama and Republicans verse Obama, Petraeus, Gates, and Mullen.  What‘s the difference there, politically speaking? 

ALTER:  This is what they call in the military “close air support” or “air cover.”  It really helps a lot if you‘ve got some, you know, fruit salad that they have on their uniforms on your side politically. 

For more than 30 years, close to 40 years, the military has essentially been Republican.  This is now in some transition, not just because people like Colin Powell came out for Obama last fall, but enlisted men and women are moving toward the Democratic Party. 

The officer corps hasn‘t yet, but there are some signs that President Obama is making some headway with them.  He was very well received at the Naval Academy last week. 

What we have here is Republicans in the Senate trying to make a last ditch effort to continue to score points with fear by turning it into a NIMBY issue, “not in my backyard,” as they call it, to scare people into thinking that somehow terrorists are going to be loosed in their communities. 

MADDOW:  So do you think that this sort of was chosen as a political fight on autopilot, almost, that Republicans looked at this and thought, yes, we know it came from a bipartisan consensus, we know Obama will get support on this, we know we might end up looking like we‘re attacking the military on this, but we‘re Republicans, we pick national security fights, that‘s what we do?

Was this just poorly thought out?  Is this the old politics infecting the new tactics? 

ALTER:  No.  I think they saw a potential wedge, and they got it short term.  Remember, they got a big victory in the Senate because the Obama administration didn‘t prepare the groundwork on moving—closing Gitmo, and moving the prisoners to the United States. 

So they were able to get a vote on funding for that, when—and senators were able to say, with at least a little bit of justification, hey, the administration hasn‘t planned this properly.  We‘re not going to give them the money yet. 

So, seeing that, seeing that they could get a quick vote that would be a slap at Obama, the Republicans went for it. 

But I think what they didn‘t get is that when the debate plays itself out a little bit, that they would be exposed in this very small corner of the Republican base with Dick Cheney and not a lot of other people. 

And if you‘ve got basically the greatest war hero since Eisenhower in General Petraeus and others saying that the Republicans are all wet on this, that presents a long-term political challenge for them.

MADDOW:  It seems to me like the face-offs is not in their favor.  And it‘s not getting a lot of media attention yet.  That may be just because there‘s a lot of political competition right now in the news cycle with the Supreme Court nominee.

But, you know, Jon Kyl is saying anyone that says Guantanamo is a recruiting tool for terrorists is just flat out wrong.  That means he‘s saying that about Admiral Mullen and Secretary Bob Gates.

We‘ve got Dick Cheney attacking Colin Powell, a four-star general, obviously the best know Republican in the country, somebody who has got military credentials beyond reproach. 

They seem to be lining up with a lot of confidence, Republicans versus military, but it has not become a sort of media meme, yet.  Will it? 

ALTER:  Well, you know, what‘s happened is that the Republicans are going to the well yet again on an issue that‘s worked so well in the past. 

But they may have gone to the well one time too many, in the same way they did, say, in the Terri Schiavo case on some of those culture war questions.  At a certain point they can overreach. 

So if this does get more media attention, I agree with you, it‘s something that Democrats and progressives should really be pushing more.  If it does get more attention, it can be a big win for the Democrats.

But, remember, there is still this kind of cultural gulf between many Democrats and the military culture.  And I think if you talk to people in the military, they feel like a lot of liberals maybe don‘t quite get their way of life or their contributions to America. 

And so liberals have to do a little better job of working to close that gap, understanding where the military is a great asset to our country.  And when they do this, I think they‘ll find they can make real headway in that community. 

MADDOW:  Jonathan Alter, MSNBC political analyst and senior editor at “Newsweek” magazine, defining my life‘s purpose for the last four years.  Thank you very much, John, it‘s nice to see. 

(LAUGHTER)

ALTER:  Nice to see you, Rachel. 

MADDOW:  You are here on a good night, because tonight we are debuting the Rachel Maddow Show‘s FBI wiretap theater. 

Tonight‘s episode stars Roland Burris as a private citizen looking to replace Barack Obama in the Senator, and Rod Blagojevich‘s brother Rob Blagojevich as the brother of the guy who may or may not be auctioning off that Senate position. 

There‘s nothing that matches the drama of taped FBI theater.  It‘s coming up next.  

(COMMERCIAL BREAK)

MADDOW:  It has been among the most entertaining and exciting ongoing examples of political theater in the history of the 24-hour news cycle. 

It‘s the saga of “governor f-word” Rod Blagojevich and the Senate seat vacated by the president of the United States, and the man who filled that seat, now Senator Roland Burris. 

Mr. Burris has maintained his innocence of any wrongdoing throughout this epic.  Today, a court ordered the release of a taped conversation about that Senate seat, a conversation that was wiretapped by the FBI and is currently under consideration by the Senate Ethics Committee. 

Now, without further ado, the “Rachel Maddow Show” proudly, though somewhat nervously presents the “Rachel Maddow Show” wiretap theater. 

Tonight‘s episode involves citizen Burris and the governor‘s brother, Rob. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  The United States Senate, this august body of honorable men and also some women, this sacred institution of governance, hallowed ground where statesmen and leaders, like J. William Fulbright, Daniel Webster, and John Fitzgerald Kennedy once trod the halls. 

Yes, this was the dignified chamber to which Roland Burris aspired when he received a phone call on November 13th from the brother of the governor of Illinois. 

Remember, we‘re talking about the Senate—august, hallowed, all that stuff. 

BURRIS:  I know you‘re calling, telling me you‘re going to make me king of the world. 

(LAUGHTER)

And therefore I can go off to, you know, wherever and do all these great things. 

ROB BLAGOJEVICH, BROTHER OF FORMER ILLINOIS GOVERNOR ROD BLAGOJEVICH: 

Well, let me tell you, one thing I am not is a (bleep), so I will just shoot straight with you. 

We‘ve had a number of conversations about, you know, anything you might be able to do, you and Fred (ph) might be able to do here before the end of the year for Rod. 

BURRIS:  Answer me this question, because I‘m very much interested in trying to replace Obama, OK? 

ROB BLAGOJEVICH:  Let me just tell you, Roland, you and 1 million other people. 

BURRIS:  That‘s right.  That‘s right. 

ROB BLAGOJEVICH:  Every race, color, creed, and faith.  It‘s amazing. 

BURRIS:  It is.  And so I put on a fundraiser now, and, you know, I think it would have some—the reason I‘m talking further about it is that it has so many negative connotations, that Burris is trying to buy an appointment from the governor for a Senate seat.  And I‘m a high-profile person. 

I‘m trying to figure out how to deal with this and still be in consideration for the appointment. 

ROB BLAGOJEVICH:  I hear you.  No, I hear you. 

BURRIS:  And if I do that, I guarantee you that that will get out, and people will say, oh, Burris is doing a fundraiser.  And then Rod and I are both going to catch hell. 

And if I do get appointment, that means I bought it.  If I don‘t get appointed, the people I‘m trying to raise money for are going to look at me and say, what was that all about, Roland? 

So Rob, I‘m in a—I‘m in a dilemma right now, wanting to help the governor. 

I‘m now trying to figure out what the hell is the best thing to do. I know I could give him a check… 

ROB BLAGOJEVICH:  Yes. 

BURRIS:  … myself. 

ROB BLAGOJEVICH:  Yes. 

BURRIS:  And my law partner, we were going to try to do something at the law firm.  I might be able to do something with Tim Wright, because Tim is not looking for an appointment, OK?

ROB BLAGOJEVICH:  OK. 

I understand your concerns, Roland. 

BURRIS:  And, god knows, number one, I want to help Rod.  Number two, I also want to—hope I get into consideration to get that appointment. 

ROB BLAGOJEVICH:  Mm-hmm. 

BURRIS:  And however that goes, it would dictate how the press treats it. 

(END VIDEO CLIP)

MADDOW:  Encore!  Encore!  No encore, at least not tonight. 

However, we can present to you a rare moment in the annals of wiretap theater, a lead player, Senator Burris himself, reviewing his own performance, which he did this evening on “Hardball with Chris Matthews.”

Check it out.

(BEGIN VIDEO CLIP)

BURRIS:  It was a normal fundraising conversation.  I supported the governor in previous fundraising events.  And his brother was fundraising.  That‘s what they do.

I didn‘t even make a move to raise one dime for the governor‘s brother. 

(END VIDEO CLIP)

MADDOW:  Here now “Rachel Maddow Show” FBI wiretap theater critic Ana Marie Cox, national correspondent for “Air America” and contributing editor for “Playboy” magazine.  Hi Ana Marie.

ANA MARIE COX, NATIONAL CORRESPONDENT, “AIR AMERICA”:  That‘s right, only print to “Playboy.”  Only words. 

MADDOW:  Was there confusion about that in your last appearance?

COX:  I just want to clarify.

MADDOW:  If you ever want to do sketches, let us know, and we will update your intro. 

So Senator Burris said he did nothing wrong, nothing unethical to get the Senate seat.  Does he need to revise that in light of these tapes? 

COX:  How many different revisions can he do, because he has already done a few sets of them?  And if he thought he was high-profile then, I have a feeling he is even more recognizable now. 

The good news for him is he might—there‘s a chance he might not be in the Senate for very much longer.  But being expelled from the Senate is actually more rare than being elected to it.  So I think he could still put it on the mausoleum. 

MADDOW:  When was the last time someone was expelled from the Senate? 

COX:  1862.  I‘m so glad you asked, Rachel. 

(LAUGHTER)

Only 15 people in the entire history of the Senate.

MADDOW:  So that would make him even more high-profile.

COX:  That‘s right.

MADDOW:  The Senate Ethics Committee is investigating Burris‘ action.  The court released these tapes to the Senate Ethics Committee.  That‘s how we got them today.

Is the Ethics Committee where scandals go to die?  I mean, they take so long.  Their findings are often so cautious.  Is this something that is effectively keeping a damper on this as a scandal? 

COX:  I don‘t think that it is something that happens consciously.  But the Senate is a very small club.  And once you‘re in, you‘re in.  It‘s a little like the mafia, I guess, with fewer scandals—wait, no. 

So it is possible that the Ethics Committee would vote by simple majority to suggest that he‘s expel or censored.  But what really usually happens in the recent past in the modern era is that step between the Ethics Committee and the full Senate.  That‘s when people usually wind up spending more time with their families. 

MADDOW:  Ah. 

COX:  Yes. 

MADDOW:  Well, Senator Burris still denying that he has done anything wrong.  Is he more of a problem for Democrats if he stays than if they kick him out? 

COX:  I think we have to—he is probably not going to be kicked out. 

MADDOW:  Yes.  But staying there, isn‘t he kind of a giant sore thumb? 

COX:  He is giant sore thumb, but he is probably not going to win his primary.  He‘s never won a statewide primary, actually, in his entire career.  So I think that is the bright side for many Senate Democrats. 

And I do think that will probably stay a Democrat seat. 

MADDOW:  Well, it is Illinois. 

COX:  Yes.  It is Barack Obama‘s seat. 

MADDOW:  Right, fair enough, although it is now Roland Burris‘s seat, and you can‘t wash that out of your hair. 

“Air America‘s” national correspondent, contributing editor for “Playboy” magazine in text, Ana Marie Cox.  Thank you for your time tonight. 

COX:  Thank you.

MADDOW:  Coming up on “Countdown,” does the admission from a right wing talk show host that waterboarding is torture change the debate?  I will join Keith to talk about that.

And next on this show, my friend Kent Jones explains just what it takes to get 10 million people to watch a cable show, the same one all at once.  

(COMMERCIAL BREAK)

MADDOW:  We turn now to our unrealistic reality correspondent Kent Jones.  Hi, Kent. 

(LAUGHTER)

KENT JONES, REALITY CORRESPONDENT:  Hi, Rachel. 

This was the launch of season five of “Jon and Kate plus Eight” this week.

MADDOW:  OK.

JONES:  Let me see if I can give you a little tutorial on this.

MADDOW:  I don‘t understand it.

(BEGIN VIDEOTAPE)

JONES:  First, as the title suggests, Jon and Kate Gosselin have eight kids, a set of fraternal twin girls who are nine-years-old, and a set of sextuplets who are five.  It‘s an all you can eat buffet of cute.

Now you maybe think raising that many kids must be difficult.  So to make it easier, Jon and Kate have decided to do it on TV for money, because every child dreams of having a tantrum captured for posterity. 

Cameras are positioned all over the family home in Wernersville, Pennsylvania to follow the Gosselins through the daily gauntlet of feeding, cleaning, and disciplining eight kids. 

Now given Jon and Kate‘s blissful relationship—

UNIDENTIFIED FEMALE:  Have I been hard on him over the last almost ten years that we have been married?  Absolutely.  You have it on tape. 

JONES:  It came as a complete shock when reports circulated that Jon was having an affair.  The couple said the other woman was just a friend.

Then Kate was accused of cheating on Jon with her bodyguard, which she denies. 

Messy, messy, messy. 

UNIDENTIFIED MALE:  I take full blame.  I just didn‘t think it would escalate into what it‘s become. 

JONES:  Neither did Kate‘s brother Kevin or his wife Jodi, who blasted them on TV. 

UNIDENTIFIED FEMALE:  This is not a healthy environment for kids to be raised in. 

JONES:  So at the beginning of season five, Jon and Kate are stewing in a crock pot of tabloid hell. 

So what happened?  Ratings gold.  Monday night‘s premiere drew 9.8 million viewers, which is more viewers than watch all the cable news shows put together. 

This leads some to speculate that all of this drama has been made up to get ratings.  In which case, let me say now for the first time, I am dating Kate Gosselin. 

(END VIDEOTAPE)

MADDOW:  Also, the “Rachel Maddow Show” has eight kids, somewhere. 

JONES:  I‘m a home wrecker. 

(LAUGHTER)

MADDOW:  There‘s that too.  Well done.  Thank you, Kent.  I felt like I needed to understand that in order to get the zeitgeist.

JONES:  Kind of complex, yes. 

MADDOW:  Thank you.  I have a cocktail moment for you. 

JONES:  Very good. 

MADDOW:  Do you remember the scene in “Ferris Buehler‘s Day Off”—

JONES:  Of course. 

MADDOW:  – when they have borrowed the antique Ferrari and drive around in it.  And they put it on blocks and they run it in reverse to try to get the miles off of the odometer, right?

JONES:  Yes.

MADDOW:  And then there‘s this.  The Ferrari out of the house. 

That house is for sale. 

JONES:  Really? 

MADDOW:  Yes.  The Ferrari garage is actually a four-bedroom house. 

It‘s up for $2.3 million in Highland Park, Illinois. 

JONES:  Ferrari not included, right?

(LAUGHTER)

MADDOW:  Thanks Kent.

Thank you for watching tonight.  “Countdown with Keith Olbermann” starts right now. 

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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