STEVE KORNACKI, GUEST HOST: Victory for "Obama care." Let`s play HARDBALL. Good evening. I`m Steve Kornacki, in for Chris Matthews. A huge win for President Obama at the Supreme Court today. In a 6-to- 3 decision, the court rejected a challenge to the president`s signature legislative achievement, the Affordable Care Act or "Obama care." Supporters of the law cheered outside the courthouse as the decision came down, a few blocks away at the White House, the president also celebrating, the White House photographer, Pete Souza, capturing these photos of the president`s reaction after hearing the ruling. And a few moments later, he spoke in the Rose Garden. (BEGIN VIDEO CLIP) BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Today, after more than 50 votes in Congress to repeal or weaken this law, after a presidential election based in part on preserving or repealing this law, after multiple challenges to this law before the Supreme Court, the Affordable Care Act is here to stay. (END VIDEO CLIP)
KORNACKI: The court rejected the argument brought by opponents of the law that the language in the bill dealing with subsidies to low-income Americans was meant only to apply to consumers in the 16 states that set up their own exchanges. That would have taken away the financial benefit to more than 6 million people in the other 34 states that are using the federal exchanges. Supporters also argued that removing those subsidies would essentially cripple the law. Now for the second time in three years, the supreme court has sided with the White House and saved "Obama care." And once again, it was the conservative chief justice, John Roberts, appointed by George W. Bush, who wrote that majority opinion. NBC News justice correspondent Pete Williams joins us now. So Pete Williams, the president says this is it. Finally, after all these court battles, this is the law of land for good. Is he right? PETE WILLIAMS, NBC CORRESPONDENT: Well, that`s going to be up in Congress, in part, if there is a Republican president and the Congress decides to try to veto -- it or do away with it. It might not get vetoed if there`s a Republican in the White House. There are other legal challenges pending. There`s one about whether the bill started on the wrong side of the Congress, given that only the House can write tax-writing provisions, given that the Supreme Court said three years ago that it`s a tax. But this does certainly seem to have a different character than the decision that came out three years ago that bailed out "Obama care" on constitutional grounds. You`ll recall that that decision was all over the place. Every justice seemed to go off in a different direction. This one is different. First of all, it`s a 6-to-3 instead of a 5-to- 4 decision, with Justice Kennedy joining last time. And remember, he was so strongly against the court`s ruling three years ago. And secondly, the court seems to sort of accept the broad premise of "Obama care" here. It doesn`t really tinker with it. It`s just this question of who is entitled to federal subsidies that make insurance cheaper. Conservative opponents had said they were not for everybody, they were only for people who bought the insurance in one of those 16 states that set up their own marketplace. But the court said today that`s wrong, joined by Justice Kennedy and the liberals. What he basically said is, three parts of the law are interlocking. Insurance companies can`t deny coverage for pre-existing conditions. Everybody has to get insurance to make sure there`s enough risk, everybody spreads the risk, and then the subsidies to make it more affordable. So if you take the subsidies away, the court said, the system collapses and that can`t be what Congress meant. Now, the dissent here was quite bitter. Antonin Scalia said the court was twisting the law`s words, very imaginatively interpreting it that the phrase "established by the state" for exchanges meant what it said. And he said it`s clear the Supreme Court -- the rule here is save "Obama care" at whatever cost.
KORNACKI: All right, Pete Williams, NBC News, legal correspondent, thank you for joining us there. Appreciate that. The president had two speeches prepared to go today, depending on which way the court rules. According to one White House official, the other version was returned to the chief speech writer with a note attached to it from the president. It read, "Didn`t need this one, brother." In his delivered remarks, the president said it is a good day for America, and he said the health care law is already woven into the fabric of America. (BEGIN VIDEO CLIP) OBAMA: This law is now helping tens of millions of Americans. And they`ve told me that it has changed their lives for the better. This law is working. And it`s going to keep doing just that. Five years in, this is no longer about a law, this is not about the Affordable Care Act as legislation or "Obama care" as a political football. This is health care in America. (END VIDEO CLIP) KORNACKI: I`m joined now by David Simas, the White House political director. So David, I mean, let`s talk about this in big picture terms here, about the legacy of this president, of this administration, of this era of American history. I mean, this is a president who ran for office in 2008 promising to do big things, who has been stymied by Congress for so much of his presidency. But he did in year two manage to get this through, and today, with this court ruling, this is a statement about what his legacy`s going to be, isn`t it. DAVID SIMAS, WHITE HOUSE POLITICAL DIRECTOR: Steve, this is why we do the work that we do. This is why that after 100 years of trying and then a very tough legislative fight up here in Washington, the president made the decision to make sure that when he had this opportunity, he could finally deliver on the promise of health care as a right, rather than a privilege. And so as he said very eloquently today, Steve, after 50 repeal votes, two Supreme Court opinions and a presidential election, it`s time for us now to move on what`s really important, which is the six million people who can rest a little bit easier, the 16 million people who have coverage, the lowest uninsurance rate ever recorded, the slowest health care cost growth in 50 years, and if you just look at 2014, employer-based premiums rising at the lowest level that they have since 1999. At the end of the day, this is why the president ran is to make sure that he was helping people. And today`s judgment by the court is just another opportunity for us to now really move forward on this.
KORNACKI: This is an issue, too, we can think beyond his presidency, assuming this thing stays on the books for the future, obviously, a legacy item -- but within his presidency, you look at the political toll this has taken on this president and on his party. You think of the 2010 midterm tsunami for Republicans. 2014, just last fall, you had Republicans out there saying, We want to repeal this thing, We want to repeal this thing, another beg year for them. You take polls now, you still find -- you just ask the question of "Obama care" itself, you still find a very polarizing issue. When you look back at the politics of the last five years and the fact this is still, at least until today, a contested issue in American politics, do you look at this and say there are things we could and should have done differently? SIMAS: You know, Steve, the reason it took 100 years to get this done is because it`s hard. The president`s got the sign on his desk that an old colleague, David Axelrod, essentially was the muse for, that said "Hard things are hard." And when you go into this debate to really fundamentally transform or help to transform the health care system, this is what you see in terms of a political fight. But here`s the reality. As we now move into the next two years, and as the 16 million people who have coverage grow every single year, and as it becomes fully embedded into the fabric of American society, I think what you began to hear today with Republicans up on Capitol Hill, some of them saying, Well, maybe we should try a different approach, while others are simply saying, Repeal and replace -- Steve, that is going to -- the repeal and replace is going to become increasingly untenable as this really gets woven even deeper into the fabric of American society. And so again, this is why we do the work that we do to make sure that we help as many people with a little time that we have here holding these positions. KORNACKI: All right, David Simas, the White House political director, thanks for your time tonight. Appreciate that. And one of the leading proponents of the law, the head of Families USA advocacy group, Ron Pollack, was in the courtroom today. He later emerged from the courthouse with a triumphant fist pump. You`re looking at it there. He`s accompanied by Gwenn Jackson (ph), another supporter, whose family has benefited from the law. And Ron Pollack joins us now, along with MSNBC contributor Dr. Zeke Emanuel, who was an adviser to the White House on health care. So Ron, let me start with you. You were joined today by somebody who`s benefited directly from this law. This court ruling today in real terms to real people -- what does it mean? RON POLLACK, FAMILIES USA: It means that they now have the peace of mind that the health coverage they couldn`t get before the Affordable Care Act became law -- now they know that they are getting significant help, they`re get substantial subsidies that make health coverage affordable, and it won`t be taken away.
And so we have talked to countless people, many of whom we`ve brought to Washington to tell their own stories. Gwenn was one of them. And they all say that if it wasn`t for the Affordable Care Act, they would be uninsured. Many of them have major health care problems, like Gwenn`s husband. He had a significant tumor. And if he did not have health coverage, he could not have gotten the care he needed. He ultimately got the care he needed. If he`d paid for it out of pocket, it would have cost $195,000. But because the Affordable Care Act was there and she was able to afford the premiums, she got -- the family got the help. And so there are lots of people who tonight I think can breathe a big sigh of relief. KORNACKI: Plenty of reaction today from opponents of the Affordable Care Act, Speaker of the House John Boehner vowing to continue to try to dismantle "Obama care." (BEGIN VIDEO CLIP) REP. JOHN BOEHNER (R-OH), SPEAKER OF THE HOUSE: The problem with "Obama care" is still fundamentally the same. The law is broken. It`s raising costs for American families. It`s raising costs for small businesses. And it`s just fundamentally broken. (END VIDEO CLIP) KORNACKI: Zeke Emanuel, is there anything to that critique? He`s saying it`s putting a burden on businesses. There are families with rising costs. We`re still hearing that line from John Boehner tonight. Is there anything to that critique? DR. ZEKE EMANUEL, MSNBC CONTRIBUTOR: I don`t really think so. After five years of being in place, no matter what metric you measure -- access, as you heard, 16 million more people getting coverage, the quality is improving in the system. The costs of the health care system actually are at historic lows. Premium rises have been low. Part of the problem is that employers are shifting more costs to workers, and we do have to protect more employees. But the general -- the Affordable Care Act itself has really been a tremendous positive influence on the system. And when I travel the country and look at health systems, they`re trying to solve problems. They`re trying to improve their quality, reduce their costs. We`re not there yet. We`re not out of the woods. There`s going to be plenty of more work to do. But the Affordable Care Act was a pivotal catalyst in getting everyone to focus on improving the health care system. I think Boehner, the fact that he couldn`t elaborate on what the problems were, just tells you that there`s really no factual basis behind that charge. The Affordable Care Act is good, and now, you know, we know that it wouldn`t be repealed. I mean, John Roberts was pretty clear, no more frivolous lawsuits and no more fear that an administration might come in and change this rule because the IRS was the source of the ruling in this ambiguous case. And I think he pretty much put it to rest for good.
KORNACKI: Yes, Ron, so you were in the courtroom today. You know, we don`t have cameras in there, unfortunately. But I mean, we had this -- this very bitter, vitriolic dissent that was read by Antonin Scalia. You had Roberts language, as Zeke is saying there, a to more, I think, more firm and emphatic than people were thinking. What was the reaction like in that courtroom? Paint the picture for us because we couldn`t be there. POLLACK: Well, first of all, it was a little surprising, even though I was in the courtroom. Most of us actually expected that the decision would come down tomorrow. Don Verilli, who`s the solicitor general, who I spoke to just before the court proceeding -- he thought that it was going to come down tomorrow. But I have to say that the chief justice actually articulated the opinion exactly the way Don Verilli actually wrote in the brief. You have to look at the entire statute, not just at a few words. What was really interesting is when Justice Scalia started reading his dissent, and he was sitting immediately next to the chief justice, you know, and it was a pretty scolding dissent. The chief justice was looking straight ahead until Justice Scalia called it "SCOTUS care," as opposed to "Obama care." I have to say I thought the chief justice really nailed this opinion very well. He understood that there is what we call a three-legged stool. One leg is you protect people with preexisting health conditions so that insurers don`t discriminate against them. Secondly, to make sure that insurance pools are not just made up of older, sicker people so that premiums would rise. You have a requirement that people buy insurance. And the third part of the leg is you got to help people and you provide subsidies for them. So if you took one of those legs out from under the stool, the stool would collapse, and the chief justice really understood that. He went through the history of states around the country that tried to do this and they failed because they didn`t have all three legs of the stool. KORNACKI: All right, Ron Pollack, Zeke Emanuel, thanks for your time tonight. Appreciate that. POLLACK: Thank you. KORNACKI: And coming up, the politics of this landmark decision today. Besides cementing President Obama`s legacy, is this decision exactly what the Republicans wanted heading into the 2016 election? They get to keep railing against "Obama care" like they`ve been doing. Now they don`t have to be responsible for having to fix it. Plus, the manhunt for those two convicted killers now in its 20th day, a second prison worker now facing charges in connection with the prison break.
We`ll take a look at the latest Republican polling. Donald Trump has shot up to second place not just in New Hampshire, but nationwide, and he`s pushing for the top spot with new attacks on Jeb Bush. And finally, a sneak peek at the next big Supreme Court decision we`re all waiting for. Will same-sex couples have the constitutional right to marry? This is HARDBALL, the place for politics. (COMMERCIAL BREAK) KORNACKI: Get ready for Chris Christie. Sources with knowledge of the New Jersey governor`s plans tell NBC News that Christie will announce his presidential campaign this coming Tuesday. Christie`s expected to do so in his hometown of Livingston, New Jersey. Christie`s pressing ahead with a presidential campaign despite sinking poll numbers in his home state and the indictments of several top aides in the "Bridge-gate" scandal. Be back right after this. (COMMERCIAL BREAK) KORNACKI: Welcome back to HARDBALL. Democrats are praising today`s Supreme Court ruling. Hillary Clinton had this reaction. She said, "Yes, SCOTUS affirms what we know is true in our hearts and under the law. Health insurance should be affordable and available to all." Meanwhile, a crowded Republican field finds itself in a shouting match over the decision, with each statement seeming to get angrier than the last. Jeb Bush said he was, quote, "disappointed" by today`s Supreme Court ruling. Ben Carson said he was "deeply disappointed." "I resent what the court has done," he said. Chris Christie went after the court by saying that, quote, "This decision turns common language on its head." Rand Paul took it a step further even -- "This decision turns both the rule of law and common sense on its head."
Mike Huckabee then slammed the ruling as an "out of control act of judicial tyranny." But Ted Cruz outdid them all. He called the court a bunch of, quote, "robed Houdinis who transmogrified a federal exchange into an exchange established by the state. They are lawless," Ted Cruz said. Joan Walsh is editor at large of Salon, now an MSNBC political analyst, too. And Lanhee Chen is a former policy director for Mitt Romney`s presidential campaign. Well, Lanhee, let me start with you. Is there no room for a Republican running for president to come out and just say, the court`s spoken? LANHEE CHEN, FORMER POLICY DIRECTOR, MITT ROMNEY CAMPAIGN: Well, look, I think all the Republicans are going to have to continue to maintain that they want to repeal Obamacare. I think the big question now, Steve, is who is going to come out and say, I have got a plan to replace something, replace Obamacare with something? I think that`s always been the challenge in the Republican Party. And that remains the challenge as we look toward 2016. KORNACKI: Yes. (CROSSTALK) KORNACKI: So, how come we haven`t -- I mean, repeal and replace has been the rallying cry since this thing was enacted in March of 2010. How come five years later, we still haven`t seen replace? We have had three elections since then. CHEN: Well, to be fair, we have seen replace. There are a number of different Republican plans out there. The reality is, people don`t cover them. But, look, these candidates are going to have to specifically articulate the one that they`re for. I think that`s the challenge now. KORNACKI: Joan Walsh, what do you make of this reaction? I`m always struck trying to figure out, is it going to be that the humble court has upheld the Constitution or the activist judges? It always seems to alternate. Depends on whether you get your way in court or not.
JOAN WALSH, MSNBC POLITICAL ANALYST: No. And I think they are going to outdo themselves destroying this decision, but are they going to move on to John Roberts next? Is that going to be the next bar that you have to cross that you call John Roberts a traitor? I really think that this is incredible. And I also think, I mean, this is a rare bipartisan moment for the country, Steve. I mean, this is a 6-3 decision written by John Roberts, who consulted with Jeb Bush over the Florida recount. His Republican background is clear. And he went out of his way not merely to kind of defer to the administration`s interpretation, but to show all the ways it`s clear it`s right. And just to get to what Lanhee says, I don`t know what the Republican plans are, besides a little bit more tax credits. And this is the thing that John Roberts did, finally, the final thing, point I will make about it. He talked about that three-legged stool. And that is the problem with Republican plans. If you want to leave, if you want to say -- and everyone does seem to want to say this -- we`re not going to exclude people with preexisting conditions, you need the individual mandate, and if you need the individual mandate, you`re going to need some subsidies. So he`s explained it more brilliantly than any Democrat can. What are they doing with that? KORNACKI: Well, Lanhee, that`s always struck me. At the heart of about this is, what Obamacare was in 2009, 2010 as a proposal, if it mirrored anything, it was the old Republican proposal... WALSH: Right. KORNACKI: ... from the Clinton era, or the idea of the individual mandate in place of something more intrusive, more government-run, anything like that. Isn`t that the essential problem Republicans have had on this? Obama took their plan from 20 years ago. WALSH: Yes. CHEN: I don`t think that`s right.
I think, look, where Obamacare jumped the shark was to put all sorts of requirements on, for example, what plans had to cover. That raised costs. I think there was concern about not giving people proper choice. I think that`s been responsible for cost increases. I think that`s really at the core of this, Steve, is the question about when what kind of plans can people choose and how does that link up with health care costs? I think that ultimately will be the question that Republican candidates in 2016 will have to address. If they`re going to be viable, they`re going to have an answer to that question. Are there going to be elements of the plan that may look like Obamacare? Perhaps. But at the end of day, it`s how prescriptive the plan is that I think bothers a lot of Republicans. KORNACKI: All right, well, speaking of 2016, today`s ruling gave Republican candidates another chance to sound the war cry to kill the law. Here is Senator Lindsey Graham on the floor of the Senate. (BEGIN VIDEO CLIP) SEN. LINDSEY GRAHAM (R-SC), PRESIDENTIAL CANDIDATE: The 2016 race, domestically, will be centered on health care as the most dominant domestic issue in the country. (END VIDEO CLIP) KORNACKI: And Ted Cruz said today that this decision makes the 2016 election a referendum on the full repeal of Obamacare. Rand Paul went on FOX News describing this as a wakeup call. (BEGIN VIDEO CLIP) SEN. RAND PAUL (R), KENTUCKY: I think people may wake up in the next election cycle and say, you know, we`re tired of Obamacare, and we`d rather try freedom and competition and choice. (END VIDEO CLIP)
KORNACKI: But today`s ruling also saves the Republican Party from the chaos that would ensue if they all had to agree on a replacement plan. Presidential candidate Rick Santorum acknowledged today that "We have seen circular firing squad after circular firing squad when there has been tough issues." However, the law`s popularity, we should note, it does continue to struggle. According to a new AP-GfK poll, 27 percent of Americans say they support the law; 38 percent oppose it. So, Joan, let`s pick up on that point, because I think that is the complicated thing here when we talk about the politics of it. WALSH: Right. KORNACKI: We have always said the individual components, so many of the individual components of Obamacare are popular. In terms of it being in effect, people benefiting from it, they like it. WALSH: Right. KORNACKI: But that term, Obamacare, do you like Obamacare, do you want to repeal it, still, five years later, doesn`t poll well. So is there an opportunity here for the Republicans in 2016? They don`t have to worry about fixing it right now. That`s off the table. They can go out there again and say, I want to repeal Obamacare. And that poll says, maybe that is a popular issue. WALSH: Well, to say that the election is going to be a referendum on Obamacare in 2016, it was already in 2012. And so I agree with you. I think the court did the Republican Party a great favor by taking this off the table. There would have been a civil war inside the party if they had to come up with -- there were some responsible people who were at the least trying to put forward some kind of transitional thing for the people who would lose their subsidies. That would have fallen apart. And that`s the other thing that would present a President Bush or a President Cruz, which is not going to happen. He could not go his own party to agree on an Obamacare replacement, if one existed.
The Obamacare replacement is kind of like the search for Jimmy Hoffa or searching -- O.J. searching for the real killers. We never find it. And so -- but they do get to continue to say they`re going to do it, without having to actually do it in the wake of this decision. KORNACKI: Lanhee, can you envision a day before or after the 2016 campaign, any time in the future, can you envision a day when the Republican Party makes the decision that Obamacare is the law of the land, they accept the basic framework, and they move on from there, and they stop saying they want to repeal it? CHEN: You know, I disagree with the notion. I don`t think Obamacare is going to be the central issue of the 2016 campaign. I think Joan is largely right, in the sense that we had that discussion in 2012. I don`t think that you are going to see people move on from the notion of getting rid of at least large swathes of the law and trying to replace it with something else, because I do think fundamentally it`s become a litmus test issue for a lot of candidates on the right. And so while I don`t think it is going to be the principal issue, I think it will be an issue. I think this election is going to focus on the economy and foreign policy. I think that`s principally what this is going to be about. KORNACKI: It seems what opponents, what people on the right find most offensive about the law -- and Joan was talking about that three-legged stool a minute ago -- is the idea of the mandate, but the mandate is the glue that keeps the thing together. WALSH: Right. Right. And that`s the problem with Republicans coming up with an alternative plan. They really have never been able to put it together. They don`t like several of the legs. They don`t like the subsidies either. But there is no way to replace it. I mean, this to me seems like a classic example of an issue where -- when Jeb Bush said somebody has got to be willing to lose the primary to win the general, we know that can`t happen, so that`s a problem with what he said, but this is the kind of thing he was talking about, because they are racing to the right to outdo themselves in describing the tyranny of this law. And then they are going to have to race back to the center to probably face Hillary Clinton, who has championed the law for her whole career. And so this is a terrible -- it`s a terrible problem. It was solved for them temporarily, but it is going to be terrible for them in 2016. KORNACKI: Yes, none of them out there losing the primary on this one today. That`s for sure.
WALSH: No. KORNACKI: Thank you to Lanhee Chen, Joan Walsh. Appreciate the time tonight. WALSH: Thanks, Steve. KORNACKI: Much more on the Supreme Court decision today and the big one still to come about gay marriage. That`s coming up later in the show. But up next, another prison employee now facing charges in connection with that prison break, as the manhunt enters its 20th day. This is HARDBALL, the place for politics. (COMMERCIAL BREAK) KORNACKI: Welcome back to HARDBALL. A second staff member of the prison in Upstate New York has now been charged, this time for exchanging a screwdriver and needle-nosed pliers with one of the escaped convicts currently in the run. Prison guard Gene Palmer said in a sworn statement that he let inmates David Sweat and Richard Matt have access to a catwalk and he says he unknowingly passed tools through ground meat. He provided paint and paint brushes, gave access to an electrical box and traded the tools for paintings made by Richard Matt. Now, an attorney for Palmer insists the veteran prison guard had no idea he was helping with an escape plan. (BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: He did not display special treatment towards specifically Mr. Sweat and Mr. Matt. If you talk to other prison guards, it`s common practice to, I don`t want to say curry favor, because that`s not the phrase that describes it appropriately, but it`s a very dangerous institution, and they try to get some level of trust from these individuals. (END VIDEO CLIP) KORNACKI: A court appearance scheduled for today was moved to Monday after Palmer notified the judge that he will be switching attorneys. Palmer remains out on bail. Joining me now to bring us the latest on the search is NBC News correspondent John Yang. So, John, in terms of where this search stands right now, the last couple days seemed like we were hearing that it might be narrowing a little bit, DNA found in cabins. They`re in these woods somewhere. Where does it stand now as we hit day 20? JOHN YANG, NBC CORRESPONDENT: Steve, they remain very focused on this area around that cabin where they -- someone saw someone run out of the cabin, and they found DNA belonging to both of the escaped prisoners. And, also, they have no evidence that they have moved on from this area. They still believe they`re on foot. They don`t believe they have left this area. So, the focus remains here. The concern also is that they may have picked up weapons along the way and that they`re now armed. As that search remains fairly narrowly focused, the investigation into the help they got inside the prison is widening. We know this now Gene Palmer, this prison guard now charged with giving them access to that catwalk as early as November 2014, this means that they would have had a lot of time to come up with this idea and this plan. We also know that several prison guards are under investigation as they look into what kind of help they got inside to get out, who gave it to them, and what kind of help they might have gotten from outside -- Steven. KORNACKI: All right. NBC`s John Yang live on the scene up there, thanks for the time. Appreciate that. And joining me now is Bernard Kerik, the former commissioner for the New York City Department of Corrections. Kerik was also police commissioner for New York City under former Mayor Rudy Giuliani. And Kerik has been on the other side of the cell block door as well as an inmate in the Cumberland federal prison, where he served time on eight felony tax and false statement charges.
He wrote about his time as a prisoner in the recent book "From Jailer to Jailed." And he joins us now. So, Mr. Kerik, thanks for taking a few minutes. I appreciate it. So, you have been on both sides of this. I`m just curious what you make of what you are learning about what life in that prison was like and how it could have led to something like this. BERNARD KERIK, FORMER NEW YORK CITY POLICE COMMISSIONER: You know what, Steve? The reality is, no matter what the woman, the supervisor, the civilian supervisor did or what this uniformed officer did, if the security in the institution was working the way it should have been, the plan would have been discovered and these guys would have never gotten out. What is pretty scary, to hear the reports today, these guys were given equipment, given tools, given things that helped them dating back to November of 2014. That means that this plan was in the works for several months. And that`s pretty frightening, considering they had, you know, damage to the cells. They were digging through the cells. They had equipment in the cells. They were -- you know, they were putting this whole thing together. You mean to tell me, in a maximum security setting, nobody searched those cells, nobody had any idea what was going on? And I think that`s where you are going to see the investigation spawn from this point to, why didn`t they? Why wasn`t those cells searched? What did other officers know? What were the kind of relationships given -- what was given to these guys, you know, intentionally or unintentionally that may have helped them? KORNACKI: So what this guy`s lawyer is saying, though -- and we just played a cut of it a second ago -- he is basically, look, you`re dealing with -- these are the hardest-of-the-hard criminals here, desperate situations for a lot of them, a lot of them looking at life imprisonment. They`re never getting out. And if you`re working in the prison, you need order, you need good behavior. You need some kind of incentive, some kind of carrot that you can offer these guys to get them to cooperate, to get them to behave, maybe to earn their trust, so they will tell you when something is up. How do you draw that line then when it turns to -- when it comes to things like cooking, allowing them to cook in the cells, maybe giving them a tour of the catwalk? Those may be -- in a way, you could say maybe those were well-intended carrots. KERIK: Well, you know what, Steve? There are carrots, there are things, incentives you can give inmates within the guidelines of the policies and procedures of the institution and within the guidelines of the law.
Some of the stuff that they gave these inmates, they`re -- it`s not within the guidelines of the law or policies and procedures, number one. Number two, these guys were placed in what I understand to be an honor dorm, where they were allowed to wear civilian clothing, they were allowed unescorted movement in certain parts of the facility. I don`t know whose idea that was, but, given the classification of these inmates specifically, that`s absurd. I mean, it just should not have happened. The other thing, like I said, for months, nobody was checking these cells. And on the night these guys disappeared, they were last seen at 10:30 at night, discovered 5:30 in the morning missing. You mean to tell me, over a seven-hour period, you had bed checks where you have to see a living, breathing body, nobody saw them in a cell and it wasn`t reported? I just -- the security of the institution has major flaws and failures. And I think that`s the reason Governor Cuomo is assigning an inspector general to look at it. And I think that investigation is going to be quite interesting. KORNACKI: All right. Bernard Kerik, thanks for your time tonight. Appreciate that. And up next: Don`t look now, but Donald Trump is in second place in the latest polls. Trump on the debate stage should be Jeb Bush`s worst nightmare. That`s next with the roundtable. You`re watching HARDBALL, the place for politics. (COMMERCIAL BREAK) (NEWSBREAK) (BEGIN VIDEO CLIP) DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: I can`t believe Bush is in first place. You know, I`m -- some people are thrilled. I`m not thrilled because how can Bush be in first place? This guy can`t negotiate his way out of a paper bag.
So, I`m in second place to Bush. I hate it. (END VIDEO CLIP) KORNACKI: All right. Welcome back to HARDBALL. That was Donald Trump on Tuesday night reacting to the poll out of New Hampshire which shows him in second place in the Granite State behind Jeb Bush. As you can see, it didn`t take long for Trump to train his fire at the man in that top spot. He didn`t hold back from mocking Bush on Twitter either saying yesterday that, quote, "The highly respected Suffolk University poll just announced that I am alone in second place in New Hampshire with Jeb bust," and he puts in parenthesis Bush, in case you didn`t know who he was talking about there in first. Now, a new FOX News poll finds that Trump has also jumped in to second place among Republican voters nationwide. That`s a gain of 7 percentage points since earlier this month. In an interview on Telemundo today, Trump repeated he will soon replace Bush as the GOP front-runner. (BEGIN VIDEO CLIP) TRUMP: I`m number two and I don`t think Jeb Bush can do the job. I`m not a big fan of Jeb Bush. Frankly, he`s there because the name Bush has been around, but the name Bush, the last thing we need in this country is another Bush, and I think I`ll supersede Jeb Bush in the not too distant future. (END VIDEO CLIP) KORNACKI: In that same interview, Trump also slammed Jeb Bush for supporting his brother`s appointment of Supreme Court Chief Justice John Roberts, who wrote the court`s majority person upholding the Affordable Care Act.
(BEGIN VIDEO CLIP) TRUMP: Justice Roberts is a disaster. He was put there by Bush, Jeb Bush actually wanted him to get that position and Justice Roberts is the one that gave us Obamacare. It should be called Roberts Obamacare. (END VIDEO CLIP) KORNACKI: All right. I`m joined now by the round table. Perry Bacon, senior political reporter for NBC News, Sabrina Siddiqui of "The Guardian", and MSNBC political analyst Howard Fineman of "The Huffington Post". Well, Howard, I never thought I`d be saying this, but I`m looking ahead to that debate in August, that first Republican debate, we know Jeb Bush is going to be on the stage. We now know, clearly, Donald Trump is going to be on the stage. And of all those candidates, I think the one Jeb Bush has to worry the most about is Donald Trump because how do you -- how do you handle what he`s now throwing at him and the way he`s throwing it at him? HOWARD FINEMAN, MSNBC POLITICAL ANALSYT: Well, Donald Trump is following a classic strategy which is to punch up. Go after the guy who is it nominally the frontrunner, although I must say somebody with 15 percent of vote is not exactly a scary frontrunner. One of the things that`s going on here is Donald Trump can rampage through the field of pygmies because nobody is going anywhere at this point. He`s not a symbol of his own strength as a potential nominee. He`s a symbol of the weakness of the entire field. And I must say also the unwillingness most of the field to talk straight and talk tough. And Donald Trump is doing it. The language that you saw there in those quotes, that is vivid fighting language. He`s not beating around any bush, so to speak, and that`s attractive to people who don`t really know much about all these candidates and they don`t like to hear familiar names. KORNACKI: It`s bluster, but bluster is theater and theater can be compelling. Sabrina, Bush will not be able to ignore him in that debate. I mean, I talk to a lot of Republicans who they would like to ignore the Donald Trump candidacy, but if Donald Trump is up there on that stage, in his face saying, Jeb Bush, you`re a wuss, Jeb Bush, you couldn`t negotiate your way, Jeb Bush, you can`t stand up to me, all this stuff, Bush is going to have to come up with something to respond to that.
SABRINA SIDDIQUI, THE GUARDIAN: He will. And I think that the best strategy for Jeb Bush is still at least for now to treat Donald Trump as a distraction. If you`re Jeb Bush, you consider your main opponents to be the more credible opponents like Marco Rubio, Scott Walker, maybe Chris Christie when he announces his candidacy later in the coming week. You know, you don`t want to get involved in the mudslinging. Voters don`t really like that. I think Jeb Bush wants to stick to his message and especially not fall into the trap what happened in 2012 where you had a lot of Republicans beating each other up on the debate stage. That`s something that had long lasting effects for Mitt Romney and his candidacy. And I really don`t think Republicans want to repeat that mistake by giving too much credence to these fringe candidates like Donald Trump and there are several more in this ever crowded GOP field. That you really want to make sure that they express confidence and have a more coherent message rather than spending a lot of money and time attacking one another. KORNACKI: Perry, here`s what I`m waiting for with Donald Trump, because I wonder if the key -- if you`re the Republican Party and you don`t want this to go too far out of control, Republicans right now behind the scenes roll their eyes at Donald Trump. The question to me is when do they start coming forward? When do the FOX Newses of the world, can when do the talk radio hosts of the world, when do the bloggers, when do they train their fire on Trump? I think back to 2012 when Newt Gingrich won South Carolina, it wasn`t 12 hours after that you had all this influential conservative voices, it wasn`t the media attacking Newt Gingrich. It was Republicans attacking Newt Gingrich. Are we going to see that same thing with Trump do you think? PERRY BACON, NBC NEWS: I position back even earlier in 2011, there was a day in October where Herman Cain was leading the polls, and then things rain down upon him, the Karl Rove started attacking, he`s attacked on FOX News, the rest of them came up. So, I think there will be a moment when Trump if he stays ahead in the polls will be attacked. But I think it`s too early for that now. I think the key is, if he goes in to a debate and says something really embarrassing about Bush or Rubio or Walker, one of the real candidates, I think that you`ll hear conservatives say, we want him in no more debates. But I think it`s too early now, because Trump has some popularity. It`s still early on. He`s honestly saying things about Bush other Republicans agree with. We don`t want another Bush is not a unique idea. A lot of Republicans feel that way. So, right now, Trump is punching Bush and people like it. I think when it gets later on, if he says something much worse or if he`s in two or three debates, then there will be a problem. If he keeps John Kasich off the stage because he`s ahead of him, then it becomes a problem because Trump is not a plausible candidate and Republicans are very worried about having him as one of the ten candidates in the debate. FINEMAN: You know, Steve, he might actually do some of those other candidate as favor eventually because if Donald Trump spends all his time beating up on a potentially weakening or at least occupying Jeb Bush and if the media focuses a lot of its attention on Donald Trump who inevitably will fall, that gives a lot of advantages in many respects to a lot of those other candidates. KORNACKI: Right. It creates the opening. You tear down the front runner, somebody maybe comes up the middle.
FINEMAN: Exactly. KORNACKI: Turning to the other side, new polling from the Democratic side shows some movement for underdog Democratic candidate Bernie Sanders. Look at this, a new poll from WMUR up in Manchester, New Hampshire, and CNN, has Clinton at 43 percent in New Hampshire, and Sanders right behind her at 35 percent, 43-35. Sabrina, I look at those first two states in the Democratic side, Iowa, New Hampshire, and it does strike me that if you`re Bernie Sanders, and Vermont can`t be one of the first two states to vote, you`re going to pick Iowa, New Hampshire because probably the most favorable venues. But is there something here that is bigger than just being the next door neighbor in New Hampshire that is driving this? SIDDIQUI: Well, look, at this point in time, there is still a lot of voters who need to be convinced by Hillary Clinton. There are a lot of people who will reluctantly support her and they wish that there was an alternative. So I think it`s not uncommon to see a surge for someone like Bernie Sanders who has his own built-in following. He`s a social media superstar. He has a really core I think support within the base over the progressive base especially. But I also think it`s very early. You know, it`s really early and the fact he`s peaking this early means that Hillary Clinton is probably fine later down the road. She still has a sizable lead, even in these states, according to other polls. So this also could be one outlier. And nationally, she`s still at over 60 percent. So, at the end of the day, I don`t think she has too much to be worried about and I think especially if she campaigns more, so far she was on a quiet listening tour, when we really see her drawing the same crowds at rally across these early voting states and up there of course on a debate stage, then I think the reaction to her will be a lot different. KORNACKI: Yes, I will tell you, I don`t know if she`s swayed by this, but I`ll tell you who you this is driving crazy, Martin O`Malley, this is going to be killing him to watch Bernie Sanders take off. Anyway the round table is staying with us. Up next, one historic ruling down, one more to go. Which way will the Supreme Court go on same-sex marriage? This is HARDBALL, the place for politics. (COMMERCIAL BREAK)
KORNACKI: We`ll be back with the next big Supreme Court ruling, coming up, gay marriage, right after this. (COMMERCIAL BREAK) KORNACKI: All right. We`re back with the roundtable, Perry, Sabrina, and Howard. After today`s huge ruling on Obamacare, the Supreme Court is on the verge of another historic ruling. This one on same-sex marriage, a decision that could come tomorrow or Monday. The court will confront two questions, first is whether states can ban same-sex marriage. The second is whether states must recognize same-sex marriages performed legally in other states. Right now, 36 states permit gay couples to marry. Perry, I know these things aren`t related, the health care ruling today and gay marriage coming down tomorrow or Monday, but it does -- it just feels to me, based on a 6-3 ruling upholding Obamacare from a Republican court, that this is not going to be a conservative ruling on gay marriage. BACON: Just looking at Justice Kennedy, who is the swing vote on everything, he`s been very pro-gay rights decisions up until now. Everyone assumes he`s going to be for gay marriage here as well. So, I don`t see a lot -- the odds of a ruling that would not -- I think everyone assumes there will be some kind of declaration that there`s a constitutional right to gay marriage, those who can`t have a statewide ban on gay marriage. I would be very surprise if that did not happen. And for the politics of that, that means the Republican candidates will figure this out, because the polling right now shows that even Republicans, if you look at Republicans under 50, are becoming more and more for gay marriage, pretty much every day. And you have to figure out, can you be elected president in 2016, and be opposed to gay marriage? Jeb Bush and Rubio say right now they`re opposed to gay marriage. I wonder if they`ll have to modify their position some. KORNACKI: Yes, Howard, we only have a few seconds left, but is there an opening? If the court says this is legal in all 50 states, is there an opening for a Republican to say, you know what, it`s settled, let`s accept this?
FINEMAN: Yes. And someone on that stage would be wise to take it, if it`s open to them, because the demographics and the changes in history going on right now are historic. The Republicans are behind on every issue, almost on every step. If they could get ahead or at least even on something, they darned well better try and this could be it. KORNACKI: All right. We will see how they respond, when we get that ruling again, tomorrow or Monday. Thank you to Perry Bacon, Sabrina Siddiqui, Howard Fineman. Back with more after this. (COMMERCIAL BREAK) KORNACKI: That`s HARDBALL for now. Thanks for being with us. "ALL IN WITH CHRIS HAYES" starts right now. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END Copyright 2015 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.>