The Rachel Maddow Show, Transcript 07/13/09

Sen. Sheldon Whitehouse, Dahlia Lithwick, Kent Jones, Michael Isikoff

RACHEL MADDOW, HOST:  Good evening, Keith.  Thank you very much for that.

And thank you at home for tuning in.

Ninety-six years ago, the very wise judge, Brandeis—Justice Brandeis, referred to sunlight as the best disinfectant.  Senator Sheldon Whitehouse and “Newsweek‘s” Michael Isikoff will be here this hour to discuss a big blast of sunlight on Dick Cheney and the promise of even more on the Bush administration‘s torture policy.

Congressman Zach Wamp also says that we got something wrong on this show about Senator Ensign, C Street and the religious group known as the Family.  So, one of us will get corrected tonight.

Judge Sonia Sotomayor has been judged prejudice by a certain notorious Republican senator today.

And it might not all be out about Sarah Palin but it‘s almost all out.

There is much to get to over the course of this hour.

But we begin tonight with what may be the biggest post-Bush presidency scandal that we have seen to date.  Allegations—that some members of Congress say—should lead to a criminal investigation of the former vice president, Richard Bruce Cheney.

This is a story, an allegation that started to unfold last week and then oblique, almost formless story about problems with what Congress knew about the CIA.  The impact of the story wasn‘t recognizable at the start until the details started to fall into place one by one.

On Wednesday night, we got first news of a short, mysterious letter written by Democrats on the House Intelligence Committee, alleging that the CIA director, Leon Panetta, had told them that the CIA had been lying to Congress for years.  A very provocative letter to be sure.  But it was very short.  There were no details.

Mostly, the release of that letter just engendered a lot of speculation about why this was happening, what it might be referring to, and the timing.  Why it came out when it did?  What political motivations might have been behind it?  That was on Wednesday.

On Thursday, we learned that CIA Director Leon Panetta was investigating whatever it was that he told Congress about that sparked that little letter from the Democrats.  We learned further that this program—whatever it had been—had never been described to the public before.  And, we learned that Mr. Panetta, himself, didn‘t even know about that program for the first 4 ½ months of his tenure leading the CIA.

Immediately, after he found out about the program, literally that day, Mr. Panetta ended the program and then the very next day, he went to Congress and briefed them about it.  So, he at least had some sense of urgency about it.

The next detail to fall into place came on Friday.  It was the bombshell from Congresswoman Jan Schakowsky that the CIA didn‘t just neglect to inform Congress about this program.  They didn‘t just forget.  It wasn‘t just an oversight.

She said the CIA had been ordered to not tell Congress about it.  They had been overtly ordered to hide the program from Congress.

On Friday night, Jan Schakowsky was a guest on this program and I asked her, who ordered the CIA to keep the program quiet?  Check out her response.


REP. JAN SCHAKOWSKY (D), ILLINOIS:  There was a decision that was made not to tell the Congress.  And so, that‘s one of the things that we have to look into very carefully, why that decision was made, who made the decision not to inform the Congress.  This was no mistake.  They did not want us to know about this.

MADDOW:  Do you know who made the decision?

SCHAKOWSKY:  We‘re going to—I can‘t talk about the names that were involved.  But I think our investigation needs to determine exactly who—what conversations were had and who signed off on those decisions.


MADDOW:  I can‘t talk about the names that were involved.  That was on Friday night on this show.

On Saturday night, all of a sudden—yes, we can talk about the names now.  The top of “The New York Times‘” Web site Saturday night—bingo—

“Cheney is Linked to Concealment of CIA Project.  Quote, “The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney.”  That is a major bombshell.  That is potentially a significant crime.

The 1947 National Security Act states in very unambiguous terms, “The president shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity.”

Congress should be fully informed—fully and currently informed.  That‘s in the law.  As in thou shalt not overtly order that Congress be kept in the dark.

Since this Saturday night Cheney bombshell, there have been some vague disclosures about what this program actually is or might be.  “The Wall Street Journal” today characterizing it as an assassination program—which, if true, would be illegal.  The Ford administration banned that 30 years ago.

Regardless of what the program is exactly, it‘s not the exact contours of the program expected to determine Mr. Cheney‘s fate.  It‘s simply the extent to which his deliberate order to deceive Congress can be proven.  So far, the recently quite verbose Mr. Cheney is not talking.

Members of Congress, however, are.


SEN. RICHARD DURBIN (D), ILLINOIS:  To have a massive program that is concealed from the leaders in Congress is not only inappropriate, it could be illegal.

SEN. DIANNE FEINSTEIN (D-CA), INTELLIGENCE CMTE. CHAIRMAN:  I think this is a problem, obviously.  This is a big problem, because the law is very clear.  We were kept in the dark.  That‘s something that should never, ever happen again.


MADDOW:  Senators Durbin and Feinstein, of course, are both Democrats. 

Senator Feinstein, the chair of the intelligence committee.

Across the aisle from them, the reaction from Republicans has been rather more subdued.


SEN. JOHN CORNYN ®, TEXAS:  This, of course, comes on the heels of the statement unproven, by the way, of Speaker Pelosi that the CIA had lied to her about enhanced interrogation techniques.  And this looks to me suspiciously like an attempt to provide political cover to her and others.

SENL JON KYL ®, ARIZONA:  Look, the president and the vice president are the two people who have responsibilities ultimately for the national security of the country.  It is not out of the ordinary for the vice president to be involved in an issue like this.

GEORGE STEPHANOPOULOS, ABC NEWS:  But to order it to be kept secret?

KYL:  But what if it‘s a top-secret program?  Of course, he and the president would both be responsible for that.  Let‘s don‘t jump to conclusions is what I‘m saying.


MADDOW:  Let‘s don‘t jump to conclusions.  Let‘s don‘t, of course. 

But let‘s also make sure appropriate conclusions are drawn here.

Joining us now is Senator Sheldon Whitehouse, Democrat of Rhode Island.  He‘s a member of the Senate Intelligence Committee and the Senate Judiciary Committee.  It was a big day on that committee today, which we‘ll talk about in a moment.

Senator Whitehouse, thanks very much for joining us tonight.  We really appreciate it.


MADDOW:  Senator Durbin says this could be illegal.  Senator Kent Conrad says it‘s a serious breach.  Senator Debbie Stabenow says it‘s very serious.  Senator Feinstein says it‘s a big problem because the law is very clear.

Your colleagues are speaking out about this loudly and firmly.  Are you also concerned that this is a major problem?

WHITEHOUSE:  I think—given the scope of some of the other problems that we‘re looking at, with the Central Intelligence Agency, in particular, the torture investigation, I don‘t know if I‘d call this a very major one.  But it certainly merits inquiry to understand why it is that President Cheney decided to order this to be kept from us, if that is true—that‘s a press report—and to assure that that‘s not continuing to happen.

Now, the CIA—we think, and I think the American people expect—should be subject to the laws of the United States, which include the requirement you read that they disclose to certain members of Congress their covert programs.

MADDOW:  The 1947 National Security Act, I‘m no expert on these things, I know that you were a U.S. attorney before you were a U.S.  senator.  You‘re much more qualified than I am to judge these things—but it does seem that the law in this case is clear and direct.

I mean, if what Director Panetta told the committee is true and there was an overt order for Mr. Cheney to keep this from Congress, does he have any legal wiggle room?  Is that a matter of negotiation at that point?  Or is it a rather clear-cut matter of the law?

WHITEHOUSE:  I would think it‘s a rather clear-cut matter of the law.  The question then would be: what is the remedy?  Every violation of law is not a criminal offense.  And you have to—if you wish to proceed as a criminal matter—find a charge that applied to that situation.  And it could be that there is none.

MADDOW:  There have been some calls for the Senate Intelligence Committee to investigate this matter.  You‘re a member of that committee.  Can you tell us if there are plans at this point to investigate?  Would you support that?

WHITEHOUSE:  I think, in the exercise of our oversight responsibilities, it is very important for us to make sure that this is not a continuing problem with the CIA.  It is of some concern that this came up at the last minute.  Apparently, Director Panetta was very rapid in bringing it to our attention and trying to cure the illegality.

But it‘s not exactly heartwarming to think that the director of the CIA, for many months, was unaware of the program himself.  What happened to the meeting when he went into his guys and said, “OK, folks, I‘m the new director here, what do I need to know?  What‘s going to get us in trouble?  Bring me up to speed.  I don‘t want anything going off under me that I‘m not forewarned about”?

I can‘t believe anybody as sophisticated as he did didn‘t have that—as he is—didn‘t have that conversation and it‘s hard to believe that didn‘t come up then.

MADDOW:  Finally, Senator, I know that it was a very big day on the Senate Judiciary Committee which you on—which you serve.  How do you think the day one went for Judge Sotomayor today?

WHITEHOUSE:  I think it went fine.  I think that Lindsey Graham for instance saying she‘d have to have a complete meltdown in order to not be confirmed is a sign of the position that the Republicans are in, in terms of trying to stop her.

I think that she‘s in a very, very good position to be confirmed, and that a great deal of what‘s going on right now is positioning for the next nominee and fighting for the vision of what a United States Supreme Court judge should think like and look like, with the Republicans fighting very hard to try to normalize the right-wing infiltration into the judiciary they‘ve accomplished over the past couple of years.

MADDOW:  When you say “look like,” do you mean to imply that they‘ve raised the issue of her gender and her race against her?

WHITEHOUSE:  Well, they‘ve tried to sort of set as what‘s normal and as the sort of basic benchmark—the almost exclusively white male, six out of eight right now status of the court, and they have tried to suggest that when she says she brings a different perspective, and that‘s a sign of a problem on her part.

And it is a little odd that her perspective should be a problem but the perspective of six white men should not be a problem.  I think everybody brings that perspective.  None of them are a problem.  And it‘s the combination of those perspectives that makes a better court.

MADDOW:  Democratic Senator Sheldon Whitehouse of Rhode Island, a member of the Senate Intelligence Committee and the Senate Judiciary Committee—I know it‘s been a very long day for you, sir.  Thanks very much for making time for us tonight.

WHITEHOUSE:  Thank you.  Good to be with you.

MADDOW:  So, do you know what it takes to get a show about politics to not lead right of at the top of the hour with the first day of Supreme Court nomination hearings?  It takes the former vice president staring down the proverbial barrel of a criminal investigation—which we‘ve just discussed.

And it takes the current attorney general apparently deciding to appoint a torture prosecutor—all of a sudden.  A huge news today.  “Newsweek‘s” Michael Isikoff will join us next to discuss that.

Plus, the story of Senator Ensign‘s affair with his employee and the religious group all mixed up in the scandal just will not go away in part because now they‘re taking issue with my coverage of the story.  Oh, dear.

Stay tuned.

But first, “One More Thing.”  Among the reactions to the news about former Vice President Dick Cheney today?  The speculation on his legal liability, the political brushback from his defenders in his own party, one response stands out—specifically for its weird timing.  His daughter, Liz Cheney, is apparently using the occasion of the potential criminal investigation of her father for breaking the National Security Act to announce that she plans to run for office.

Here she was on a radio show run by the conservative “Washington Times” newspaper.


LIZ CHENEY, FMR. VICE PRES. CHENEY‘S DAUGHTER:  It‘s stuff that I may well do down the road here.  I hope to, you know, have the opportunity, at some point, to have that, you know, make sense for my family, and everything else that‘s going on.


MADDOW:  In the same interview, Liz Cheney argued that the controversy over her father allegedly ordering the CIA to deceive Congress showed just how untrustworthy Democrats are on national security.  You know, anyone can deny.  It takes a true Cheney to deny and attack in the same sentence.  Blood will out.


MADDOW:  More than once this summer we here at THE RACHEL MADDOW SHOW showed up for work all geared up to have our jaws dropped and our gobs smacked by the release of what we‘ve been calling the big kahuna—the 2004 CIA inspector general‘s report on torture.

And every time we thought this report was coming, we instead had to find a different page one story.  They still haven‘t released it.  We first expected the report June 19th.  Then we got the news it was going to be delayed a week until June 26th.  Then it was July 1st, and now, the release is delayed until the end of August supposedly.

This report details the investigation of the Bush administration‘s torture program as it was happening.  It appears to have caused full blown political panic inside the Bush White House when it was first completed in 2004.  It‘s never been publicly released.  But people who have seen it have described it as sickening.

One person who has read it recently is Attorney General Eric Holder.  “Newsweek” reporting that, last month, the attorney general holed up with the report in his office.  He cleared his schedule for a full two days and read it cover-to-cover twice.  After that, quote, “four knowledgeable sources tell ‘Newsweek‘ that the attorney general is now leaning toward appointing a prosecutor to investigate the Bush administration‘s brutal interrogation practices.”

Specifically, “The Washington Post” reported this weekend that prosecutions could be targeted at torture that went beyond the guidance in those now-repudiated torture memos.  When the Obama administration released those memos back in April, the president said at the time that no one acting in accordance with their instructions should be prosecuted.  But he pointedly didn‘t say anything about people whose actions went beyond those instructions.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it‘s appropriate for them to be prosecuted.


MADDOW:  But anyone who acted outside those four corners of those legal opinions?  Meet the new attorney general—not at all the same as the last attorney general.

Joining us now is Michael Isikoff, “Newsweek” investigative correspondent—“Newsweek” investigative reporter at MSNBC contributor.

Mike, thanks very much for joining us tonight.


MADDOW:  Who‘s potentially in the spotlight here?  Who is potentially going to be prosecuted?

ISIKOFF:  Potentially, CIA contractors and operatives who conducted the interrogations in the field.  It is important to understand what this prosecutorial review—and it‘s a review and investigation, it‘s not necessarily a decision to prosecute—is and what it‘s not.

And I think there could be some disappointment by people who do think that the entire Bush administration interrogation policies and the people who crafted those policies and crafted those memos need to be investigated.  That‘s—they‘re not going to be.

I did some reporting—further reporting today on this and what I‘m hearing from senior officials is very clear: Only those who went beyond or potentially went beyond what was in those memos.  Now, that‘s not nothing.  That‘s important.

It is worth noting that the same CIA inspector general who prepared that report in May of 2004 also referred about a dozen cases to the Justice Department, that the CIA Inspector General John Helgerson, a dozen cases to the Justice Department for potential prosecution.  Only one was prosecuted.  One, a guy in North Carolina, David Passaro.  But all the others were declined.

Now, the Obama Justice Department—the Holder Justice Department is going to take another look at those to see whether those cases that have languished for years should be reinvestigated and prosecuted.

MADDOW:  On the issue of how the—I guess—the remit gets defined, how people figure out whether or not they might potentially be the target of prosecution here.

If people are acting outside the bounds of the instructions from those torture memos, is it a foregone conclusion that they were freelancing, that they were making it up as they went along?  Isn‘t it possible that they were taking those actions on orders?  They were being directed to do those things?  Couldn‘t it go further up the chain of command?

ISIKOFF:  I talked to some defense lawyers today who said that is absolutely inevitably going to be the defense, that of anybody who comes within the—comes up in this prosecution.  The defense lawyers are going to say they were relying and doing what their superiors knew about and told them to do, that the guidelines in those memos were ambiguous and fuzzy, and they had every reason to believe that the—when they waterboarded one detainee 183 times or another 83 times, they were doing what they believed their superiors wanted them to do.

And so, these—I think everybody recognizes—these are going to be difficult cases to bring, precisely because of a defense like that.

MADDOW:  What would these people be charged with conceivably, looking at those previous dozen cases that were brought up by the inspector general under the last administration and what we know about what‘s in that inspector general report now?

ISIKOFF:  That is a very interesting question, because I do know some from the reporting today that in a—that in at least one case, the inspector general wanted the individual to be prosecuted for torture, for violation of the federal torture statute.  What inevitably happened in that case and in others was that they—the Bush Justice Department shied away from bringing any cases along those lines.  They looked at it for potential assault charges; in some cases homicide, because some of these guys did die in CIA custody.

They didn‘t bring any homicide cases—but, you know, the answer from the Holder people is: that was the Bush Justice Department.  That‘s not necessarily what this Justice Department is going to do when they re-look at these cases.

MADDOW:  Last question, very briefly, Michael—is this a done deal or is this still being debated?

ISIKOFF:  I think it‘s pretty far along.  As my colleague Dan Klaidman reported this weekend in “Newsweek,” Holder is leaning in this direction.  He‘s still leaning in that—in this direction even after the potential blowback today.  But you never know in Washington.

I think inevitably this is going to be controversial.  So, until it‘s a done deal, it‘s not a done deal.

MADDOW:  This is the first day of what is going to be a hot story for a very long time.

Michael Isikoff, MSNBC contributor, investigative correspondent for “Newsweek”—thank you so much for joining us tonight.

ISIKOFF:  Thank you, Rachel.

MADDOW:  Coming up: The nation‘s finely calibrated irony-o-meter—ironyometer—irony-o-meter—explodes as Senator Jeff Sessions tells Supreme Court nominee Sonia Sotomayor that she has a prejudice problem.  “Slate‘s” Dahlia Lithwick will be joining us shortly.

And more on the secretive religious group the Family that‘s connected to the Senator John Ensign sex and money scandal and the Mark Sanford sex and Argentina scandal.  That comes up next.


MADDOW:  Still ahead: The confirmation hearings for Judge Sonia Sotomayor are the Republicans big chances to make clear their reservations about her nomination?  “Slate‘s” Dahlia Lithwick was in today‘s hearing and she will be joining us shortly with her eyewitness report.

And, all of the newly-reported details about Governor Sarah Palin‘s resignation boil down to something far less grandiose and far less complicated than we might previously have understood.  That‘s coming up shortly.

Plus, my friend Kent Jones exposes a truth about cursing.  It can be quite therapeutic.

That‘s all coming up in the rest of this hour.

But first, we have had a strange response today to our recent reporting on the Family—a secretive religious organization that among other things runs a house in Washington called C Street, where a number of members of Congress live.

We spent time on this show both Thursday and Friday talking about the Family because it‘s emerged as a key player in both major Republican sex scandals of the summer in which family values-preaching politicians who have demanded resignations of other politicians for having affairs have themselves now admitted to affairs but are showing no signs of intending to resign.

The two scandals are, of course, those of South Carolina Governor Mark Sanford and Nevada Senator John Ensign.  Senator Ensign lives in the C Street house that‘s maintained by the Family.  The husband of his mistress says other members of Congress who lived at C Street both knew of his affair and counseled Senator Ensign on how to resolve it.

Governor Sanford name-checked C Street explicitly in his press conference in which he announced his affair, saying that he had received counseling about the affair from C Street while the affair was ongoing but still secret.

Well, on Friday‘s show, I quoted an account from the “Knoxville News Sentinel” in which a member of Congress who lives at C Street described one of the most worrying aspects of this shadowy, powerful organization—its secrecy.  The congressman in question is Zach Wamp of Tennessee.  He has lived at C Street for a dozen years and here is what I said about him on Friday.


MADDOW:  Zach Wamp of Tennessee is a Republican member of Congress who says he has lived in the C Street house for 12 years.  Today, he told the “Knoxville News Sentinel” that the members of Congress who live there are sworn to secrecy.

Quoting from the “News Sentinel,” “The C Street residents have all agreed they won‘t talk about their private living arrangements, Wamp said, and he intends to honor that pact.  ‘I hate it that John Ensign lives in the house and this happened because it opens up all of these kinds of questions,‘ Wamp said.  But, he said, ‘I‘m not going to be the guy who goes out and talks.‘” 


MADDOW:  That was on this show on Friday.  Today, Congressman Wamp‘s office contacted our office to complain about what I said saying, quote, “This statement made by Ms. Maddow Friday night is false.  Today he told the ‘Knoxville News Sentinel‘ that the members of Congress who live there are sworn to secrecy.  Congressman Wamp never said people who live or meet at C Street are sworn to secrecy because that is in no way true.” 

The on-the-record quotation from Mr. Wamp was that C Street residents have all agreed they won‘t talk about their private living arrangements.  The “News Sentinel” characterized that agreement as a pact.  We called the “News Sentinel” today to see if they got that wrong, to see if Mr. Wamp‘s office had at least also called them to say they got his quote was wrong, to demand a retraction or correction. 

They said they haven‘t heard from him.  Turns out Zach Wamp‘s office is only complaining to us.  Until we have reason to believe Mr. Wamp was lying when he said C Street residents have all agreed not to speak about C Street or that his home state paper was lying when they attributed the quote to him, I am going to have to stand by what I said. 

If I have said something untrue on this program, I am quite literally, not kidding, more than happy to correct it.  But Congressman Wamp, if you say something to your hometown paper that sounds bad when it‘s repeated on national television, don‘t blame the person reading your quote back to you for how creepy that quote makes you sound.  I‘m tempted here to add something about bearing false witness but I shall reframe - barely. 



SEN. DICK DURBIN (D-IL):  Of 110 individuals who have served as Supreme Court justices throughout our nation‘s history, 106 have been white males. 


MADDOW:  That was Sen. Dick Durbin of Illinois speaking at today‘s confirmation hearings for Sonia Sotomayor, President Obama‘s pick for the Supreme Court.  It is widely assumed that Judge Sotomayor will be confirmed.  She will be sworn in as the first ever Latino to serve on the Supreme Court, not to mention only the court‘s third woman. 

Which means Republicans in the Senate are using the Sotomayor hearings, not so much as an opportunity to block the president‘s nominee, because they know that pretty much they can‘t, but rather to demonstrate the character of themselves in opposition which, it turns out, looks a little something like this. 


UNIDENTIFIED MALE:  Many of Judge Sotomayor‘s public statements suggest that she may indeed allow or even embrace decision-making based on her biases and prejudices. 

UNIDENTIFIED MALE:  Already prejudiced against one of the parties. 

UNIDENTIFIED MALE:  Allow biases and personal preferences - the wise Latina woman quote. 

UNIDENTIFIED MALE:  Your wise Latina -

UNIDENTIFIED MALE:  Your wise comment -

SEN. JEFF SESSIONS (R-AL):  Justice Sotomayor has said that she accepts that her opinions, sympathies and prejudices will affect her rulings.


MADDOW:  If your irony-sensing ulcer is spitting bile right now, let me confirm that that last guy there was Republican Sen. Jeff Sessions of Alabama, accusing Sonia Sotomayor of having a prejudice problem. 

That would be the same Jeff Sessions whose own nomination for a federal judgeship could not make it out of the Republican-run Judiciary Committee in 1986 after testimony that he had called the NAACP un-American and communist-inspired, had joked that he thought the Ku Klux Klan was OK until he found out members of the Klan smoked pot, and that he agreed with another lawyer who said a Department of Justice attorney, who was white, was a disgrace to his race because he represented African-Americans. 

And those are the things that he admitted to saying and tried to defend.  The charges he denied included the allegation that he told a black attorney he should, quote, “Be careful about how he talked to white folks,” and that he called a black attorney “boy.” 

Now Jeff Sessions is leading the charge against Sonia Sotomayor on the grounds that she has a prejudice problem.  And Sen. Sessions is doing it as part of the hearing process that is basically certain to result in Judge Sotomayor‘s confirmation, which means that Sen. Sessions, specifically, and his party generally, are using this opportunity to stand on the giant media platform that is a Supreme Court nomination to proclaim themselves to the nation as opposed to the first ever nomination of a Latino to the Supreme Court, mostly on the basis of questions about race. 

Joining us now is Dahlia Lithwick, chief legal correspondent and senior editor for “”  Dahlia covered the hearings today in Washington.  Dahlia, thanks very much for coming on the show. 


“SLATE.COM”:  Thanks for having me. 

MADDOW:  So far, in this nomination fight, are we having a grand debate here about legal strategy?  Or as is my sense, are we mostly just talking about race? 

LITHWICK:  We are I think having a little group therapy with the prime person we‘re supposed to be talking about, Sotomayor, sort of like a potted ornamental plant in the middle of the room. 

And the most interesting thing, Rachel, is that she‘s got this nearly 18-year judicial record we could be talking about.  This is not someone who‘s hard to - there is data here.  And so what we heard a lot today was, from the Republicans at least, why that record doesn‘t matter.  And as you said, the record doesn‘t matter because what really matters is a handful of statements about race. 

So it‘s an interesting strategy to say we‘re not going to talk about all that stuff that we care about, all that constitutional interpretation, and doctrine, and how we think about the law, because we just want to talk about race instead. 

MADDOW:  Well, in terms of who gets to set the agenda here the Democrats have such a large majority in the Senate that they‘ve even got a huge majority on this committee.  And this question now is whether or not I guess they do set the agenda.  And we do end up talking about the wise Latina comment and anything else they can get on the agenda about race or whether the hearings do end up being about her judicial record. 

Is that what - where the split is in partisan terms?  Are Democrats trying to make this about her record? 

LITHWICK:  Well, I think Democrats are trying to do two things, at least today in opening statements.  One is talk about her record.  They definitely beat the drum for her story, an extraordinary personal narrative.  I think they have gone out of their way to talk about it. 

In fact, Sen. Al Franken went out of his way to talk about just ordinary Americans and why access to justice in the courts matters.  So there is all that.  But then I think there‘s this other piece of it that they really are trying to almost make the case for empathy. 

They‘re following President Obama‘s lead in saying, “Look.  Here‘s what‘s wrong with the Roberts court.”  And they‘re trying to use it as a way of saying, she brings something to the bench that is profoundly lacking in Sam Alito, in John Roberts, in Scalia, in Thomas. 

And so you‘re seeing layered over a discussion of her record this other sort of squishier notion of something is lacking at the court.  You can call it empathy.  You can call it heart.  You can call it being in touch with how your decisions affect people on the ground. 

There are all sorts of iterations of this we heard today.  But I think a lot of what we heard today was Lilly Ledbetter, Savanna Redding - you know, these key cases that suggest that the Supreme Court just doesn‘t care about people. 

MADDOW:  Well, is it heart, is it empathy, is it connection to the real world?  I mean it is the closest thing we‘ve got to an ivory tower.  I mean, they are - once they‘ve been on the court they never have a normal life again.  I mean, to what extent should we expect either Sotomayor herself or the Democrats who are defending her nomination to make the case that overtly it is better to have some racial diversity on the court?  Because the court has to make decisions for a racially diverse nation. 

LITHWICK:  You know, the person who I actually thought did a nice job of handling this question of - you know, Sessions actually went so far today as to say, empathy towards one party is prejudice towards another. 

That‘s a pretty charged statement.  Because certainly empathy as it‘s being constructed by Obama and by Senate Democrats isn‘t bias.  It‘s not prejudice.  It‘s saying, how do things play out in the world?  I thought that Sen. Klobuchar did a nice, nice job today sort of trying to say, look, everyone on this committee has a different life story.  We‘ve got different backgrounds and experiences.  That doesn‘t make us biased.  It means we come together and we bring the wealth of our experience together and we‘re a better group for it. 

And I think that‘s a point that is not quite being made loud and clear.  I think there‘s all sorts of defenses of empathy.  And part of the problem is empathy itself is such a squishy, constitutional word that it leaves itself open to all sorts of attack. 

But I thought that was sort of a nice way of making the point that empathy doesn‘t make you crazy.  It doesn‘t mean that every single time you see a white guy, you fly into a rage.  Empathy means you simply understand both sides of the dispute.

And I just want to add that Sotomayor, in her very, very brief opening statement - it was seven minutes - just the facts really as stripped down as it could be.  But I thought one point she made was not just that she had fidelity of the law but she also I think had a nice little riff about how - when she writes an opinion, she writes out the law. 

Then she writes out the other side of the story and then figures out in her opinion whether they‘re right or wrong.  But I think it was a way of telegraphing, “I hear both sides.”

MADDOW:  Dahlia Lithwick, chief legal correspondent and senior editor for “,” thanks very much for coming on the show tonight.  I‘m very excited for the rest of the hearings. 

LITHWICK:  Thank you.  

MADDOW:  Thanks.  Coming up on “COUNTDOWN,” Keith has more on Attorney General Eric Holder saying he may appoint a special prosecutor to look into whether the Bush administration broke the law by torturing prisoners. 

Next on this show, everything we always wanted to know about Sarah Palin is far simpler than first imagined.  The well, duh, is in the details.  And we found them all, coming up. 


MADDOW:  Today is the 50th anniversary, the golden anniversary, if you will, of America‘s first nuclear meltdown.  It was 50 years ago in Ventura County, California, that the Atomic International field laboratory in the Sta. Susana Mountains had a big, terrible whoopsie. 

A power surge at one of the reactors caused a partial meltdown and released radioactive gas into the air for almost two weeks.  A few weeks after the incident, the Atomic Energy Commission released a statement there was no evidence of radioactive releases, which was false. 

It was another 20 years before the details of the meltdown and the counting of the dangers were made public.  So if you‘re the federal government, what does etiquette require you to give the State of California for the golden anniversary of America‘s first nuclear meltdown? 

Well, a cleanup would be nice.  Right now, one is scheduled to be completed in 2017, roughly 60 years after the meltdown.  Nuclear power, not just the world‘s most expensive means of boiling water, also a constant opportunity for multi-generational radioactive disaster.  Happy anniversary.


MADDOW:  The most interesting person in American politics whose name is not Barack Obama or Michelle Obama is, of course, Sarah Palin, like it or not.  I realize this weekend that it was not even yet a year ago, when as a panelist, on the late lamented show “Race for the White House,” I brought up Sarah Palin and the trooper-gate investigation as almost a side bar, human interest distraction from our daily speculation on who would be the vice presidential choices of Senators McCain and Obama. 

I thought at the time that trooper-gate probably was a big enough ethical question mark over the governor of Alaska to keep her out of any serious contention as John McCain‘s vice presidential pick.  Three and a half weeks later she was McCain‘s vice presidential pick.  I was wrong, big time which, of course, is an occupational hazard of the “predicting the future” part of the pundit job. 

But as Gov. Palin‘s life has turned into the most amazing show on cable over these past 11 months through the presidential campaign and the tumultuous months for her since then, it turns out now that it actually has been the ethical question marks in her life and the basic problems in handling elected office appropriately that seemed to have brought her career as a public official to an end. 

Sarah Palin announced she was resigning as Alaska governor on the Friday before the July 4th holiday weekend.  It was a move that surprised everyone thought to be close to the governor‘s political thinking.  And frankly, it surprised everyone who knows anything about politics. 

And that‘s because the thing you do when you‘re eyeing a race for president is you announce that you won‘t seek another term as governor.  See for example Tim Pawlenty.  You don‘t announce that you are quitting the middle of your first term when your only other experience is being the mayor of a small town.  That‘s politics 101 truism. 

And frankly, the verbose, frenetic disorganized nature of her resignation statement itself and the many, many interviews she has done since then are why the governor‘s resignation has only heightened the already extreme fascination with her. 

What‘s the real reason she‘s resigning?  Is there a major new Palin scandal about to break that she is trying to get out ahead of?  Is this some politically advanced shrewd move for the presidency that‘s too clever for politics 101 students to grasp?  What role does she want in Republican politics in the future?  And will she get to play that role? 

In the landmark of Palin-tology published in today‘s “New York Times,” some of those questions are now answered.  Bottom line - she resigned because her governorship in Alaska had turned into a disaster.  Leaving office was not a shrewd move by somebody picking a better political option from among a range of political choices available to her.  It was a jump off the political cliff to avoid being pushed off that cliff. 

Among the chief causes of her downfall?  She was unable to stop herself from picking fights with her critics and from responding critics picked fights with her.  When David Letterman made an ill-advised joke about the governor‘s daughter, Gov. Palin tried to stoke an ongoing feud of him, accusing him of advancing the exploitation of girls by older men. 

A Republican state legislature in Alaska then called Palin‘s bluff on that, saying if she were really so concerned about that issue, she should fully fund anti-sexual abuse programs in Alaska.  Palin responded by asking state public safety officials to issue a statement praising her policies about reducing sexual assaults on children.  How‘s that for a good use of state employees‘ time?

The governor‘s official press office also put out press releases denouncing Alaska bloggers who had accused her every ethical missteps.  She had lawyers and her political action committee threaten illegal action against people who spoke out against her on daytime cable television. 

The governor‘s official press office put out multiple press statements denouncing her daughter‘s 19-year-old ex-boyfriend which, of course, made him a hotter ticket than ever for interview opportunities to talk trash about his almost mother-in-law. 

That lack of self-control and of boundaries between the personal and the political and the petty is the flaw that had drawn her into earlier ethics scandals like trooper-gate.  You remember trooper-gate?  That was where the state legislature found she had abused her office by firing the public safety commissioner who wouldn‘t fire her brother-in-law.  And that one was even before she got picked to run for vice president. 

And it‘s been an incredible year of watching Sarah Palin.  And we should all know better than to suggest that we know what she‘s going to do next, me in particular.  But what is now able to be reported about the catastrophic unraveling of her governorship tells us what this isn‘t. 

There isn‘t an exotic political scheme for even higher office here.  There isn‘t a dramatic shoe waiting to drop in some big new criminal investigation.  This isn‘t even about how Sarah Palin‘s life has changed since she has been subject to the national spotlight. 

Sarah Palin‘s career as an elected official is now over because of a proven inability to govern.  A thin skin about criticism, distorted priorities that result from having that thin skin and an inability to judge the difference between what bugs her as a person and what‘s an appropriate use of an elected official‘s time and the public‘s resources. 

Gov. Palin will be a private citizen again by the end of next week.  Who knows what untold millions await her in her book contract and the inevitable broadcasting deal or professional conservative show job. 

She may well continue to be the most entertaining Republican on the planet by a mile, but she will not be an elected official again. 

And after the disaster of her governorship in Alaska, I would guess she will not even risk that fate by ever running again.  That said, if you are a fan of the Democratic Party, pray that I‘m wrong about her again. 


MADDOW:  We turn now to our therapeutic profanity correspondent, Mr.

Kent Jones.  Hi, Kent.

KENT JONES, POP CULTURIST:  Yes.  Hi, Rachel.  I recently read about a scientific experiment that claims that people that swear can withstand pain better than people that cannot swear. 

MADDOW:  No way. 

JONES:  Since I‘ve been swearing many years now, I decided to try this out for myself.  Take a look. 



JONES (on camera):  Researchers in England did an experiment when they made volunteers dunk their hand in a tub of ice water as long as possible while repeating their favorite swear word like this - (EXPLETIVE DELETED).

Then, they did it again repeating a non-swear word.  Cookie dough, Massapequa, Warren Gamaliel Harding, frog legs. 

Turns out people, even this guy, (EXPLETIVE DELETED), were able to keep their hand submerged in the ice water longer when they were cursing.  Hey, you can‘t argue with (EXPLETIVE DELETED) science.  That‘s the (EXPLETIVE DELETED).


MADDOW:  What was the difference in the - you know? 

JONES:  I guess you get a little bit more adrenaline going with the swearing -


JONES:  And maybe it heats you up a little bit.  That‘s all I can say.

MADDOW:  Or maybe you‘re embarrassed to hear yourself saying such blue things and that makes you blush and that makes you heat up.

JONES:  No.  There is no embarrassment at all.  What you‘re thinking - cold, right here. 

MADDOW:  Very nice. 

JONES:  Yes.

MADDOW:  Thank you for taking one for the team on that.

JONES:  Sure. 

MADDOW:  I appreciate it. 

JONES:  We have to know these things.

MADDOW:  I owe you wrist bands or some sort of - to warm you up.

JONES:  My hands. 

MADDOW:  All right.  I have a cocktail moment for you that is a little bit of a mea culpa, which is funny because we got asked for a mea culpa by Zach Wamp on the John Ensign story today which he didn‘t get because he didn‘t deserve it. 

But actually, we have to do a mea culpa on a different aspect of it.  Last week, on this show, we were talking about the John Ensign sex scandal …

JONES:  Yes.

MADDOW:  … and specifically the details that his parents paid off his mistress‘ family to the tune of $96,000.  Remember that story? 

JONES:  Yes.

MADDOW:  And on the day that we did that story, we did that story - can we put it up here?  We used this graphic, Johnny Cash. 

JONES:  Johnny Cash -

MADDOW:  Yes.  Believe it or not, after that show aired, we got a call from Johnny Cash‘s manager. 

JONES:  Oh -

MADDOW:  The actual Johnny Cash‘s manager. 

JONES:  The Johnny Cash - man in black.

MADDOW:  Yes.  Understandably not at all thrilled to be associated with this scandal. 

JONES:  Oh, my -

MADDOW:  I have to say, as a huge Johnny Cash fan …

JONES:  Me, too.

MADDOW:  … somebody who respects him and who actually went to protest the RNC having that thing at the Johnny Cash auction at Sotheby‘s in 2004, the “Defend Johnny Cash” protest.  I was there.  I was very happy. 

I have to say, I‘m very sorry.  We will just go back to calling him the future former senator from Nevada. 


MADDOW:  Thanks, Kent.  Thanks to you at home for watching. 

“COUNTDOWN” with Keith Olbermann starts right now.