Show: HARDBALL Date: January 31, 2017 Guest: Terry McAuliffe, Seth Moulton, Ed Markey, Yamiche Alcindor, Ed Brookover; Josh Gerstein, Tom Goldstein, Richard Blumenthal
CHRIS MATTHEWS, HOST: Fear factor.
Let`s play HARDBALL.
Good evening. I`m Chris Matthews in Washington.
Donald Trump is tonight conducting a campaign of shock and awe against this country`s institutions. He is on offense in a capital city not used to being suddenly thrown on defense. The capital of this country is suddenly bound up in fear, rage and unbalance, wondering if this new president accepts any limit to his power.
Is he ready to attack the media, mock the Democratic leader of the Senate, accuse the acting attorney general of betrayal, seize power over immigration policy and push the Republican Congress to near the breaking point? The answer to all of these questions is a resounding yes. He is, and he is.
Tonight, within the hour, we hope to know who Trump will name as the decisive member of the United States Supreme Court, the only branch of government over which he has yet to grab control. In the political and legal chaos in the wake of President Donald Trump`s executive order of last Friday, the president yet to -- is set to announce his choice to fill the vacancy on the Supreme Court in just an hour from now, at 8:00 o`clock, though we may get the verdict here on HARDBALL earlier.
That seat has been vacant for nearly a year following the death last February of associate justice Antonin Scalia, and it`s remained vacant since Senate Republicans refused to even consider the nominee put forth by former president Barack Obama, Merrick Garland.
All reporting indicates that the president has narrowed his choice to just two finalist, Judge Neil Gorsuch of the U.S. court of Appeals for the 10th circuit out in Denver, a conservative who is seen as the most natural successor Scalia in both style and substance.
The other is Judge Thomas Hardiman of the U.S. Court of Appeals for the third circuit out in Pittsburgh. He`s the first member of his family to go to college and had a job driving a taxi the summer before attending law school.
But the guessing game is within the hour when President Trump announces his pick for the Supreme Court. Tom Goldstein in the founder of Scotusblog and Josh Gerstein covers the White House and the courts for Politico.
Let me start with Mr. Goldstein, and thank you, and then Gerstein. Let me ask you about this -- why are we having a Miss Universe type event tonight at 8:00 o`clock, where apparently, they`re going to bring the first runner- up out with the winner in kind of a circus, if not road show kind of event? What does this do for the respectability of the nominee, the appointee?
TOM GOLDSTEIN, SCOTUSBLOG: Well, I don`t know that it says so much about the nominee. It`s unfortunate for the court. You know, it`s an institution that likes to be taken very seriously. The only reason people follow its orders is because of the respect that they have for it. And it`s pretty unusual to have it be in this kind of circus-like atmosphere making it part of the Trump show. But I think this will pass. People will focus a lot on the credentials of the nominee and what his views are. But it`s definitely not the way we usually do things.
MATTHEWS: Well, let me go to Josh because we`ve had a question raised whether we have an independent attorney general or not, and it obviously -- Mr. Trump believes that if you don`t do what he wants, even if you`re a holdover, you`re a traitor. You`re guilty of betrayal. Those were his -- that was his word, "betrayal."
And my question is, in bringing out a Supreme Court associate justice in the circus-type Miss Universe or even "Apprentice" type manner, showing that this is his person, do you think he`s going to show respect for the independence of the judiciary tonight? Will it seem like this is an independent person that he brings out like his prize whatever?
GERSTEIN: Well, I wouldn`t expect him to show a lot of respect for the independence of the judiciary. That`s not been his track record. If we remember back to his comments about the federal judge in San Diego who -- who he accused of bias strictly because his ethnic heritage and things along those lines, that hasn`t been Trump`s track record, to color within the lines. So it wouldn`t surprise me if he oversteps the bounds on this tonight.
I don`t know if the presentation alone shows a lack of independence for the people who show up. But to me, it sounds a little bit like an episode of "The Bachelor," and maybe we`ll have a live camera on both of them so we see, you know, who gets the prize and who`s disappointed.
MATTHEWS: Let me go back to Tom. Tom, it seems to me that this has gotten very embittered and almost a joke. You`ve got Mitch McConnell, the Republican leader, last year saying he wasn`t going to allow any nomination for the last year of the presidency of Barack Obama. He just killed it in its tracks. They wouldn`t even meet with the guy, let alone vote on him. They wouldn`t even vote on him in committee. The wouldn`t see him. They said there`s some principle that -- it`s probably the same principle that McConnell came up with at the beginning of the Obama administration itself, which is, We`re not going to let you do anything.
And now there`s a lot of back-biting here. You know, Senator Merkley from Oregon, who says he`s going to play the same game back again. This has become tit for tat, with neither side willing to respect the fact a president has right to pick a Supreme Court associate justice and the Senate has a right to confirm it after due process, but it doesn`t seem like either side wants to follow the procedure of the normal order.
GOLDSTEIN: Yes, everything is completely broken. I think you can say with a high degree of confidence that no matter who shows up nominated by the president, Democratic senators are going to exact what they view as their revenge for what was a really unprecedented situation with Merrick Garland and refusing to give him a hearing and a vote. And he was somebody who clearly, you know, met every qualification...
GOLDSTEIN: ... for the Supreme Court. So it`s -- you know, the unfortunate thing, too, is that it just draws the court into this political circus that you described, and so people`s confidence goes down.
But yes, it`s going to be all-out war. The difference here is that Republicans have not just the presidency but also control of the Senate. Right now, it does take 60 votes to get a Supreme Court justice confirmed. But when Democrats inevitably filibuster this nominee, Republicans will change those rules and make it a simple majority, and this person is going to get on the court.
MATTHEWS: Thank you guys, so much, Josh -- Josh Gerstein, and thank you, Tom Goldstein, for coming on with your expertise.
Joining me right now is Democratic senator Richard Blumenthal of Connecticut. He sits on the Senate Judiciary Committee, which will hold confirmation hearings for the president`s nominee.
Senator Blumenthal, thank you for joining us. Will you hold hearings on whoever Trump puts up, or will you play with -- the terrible game of nothing that the Republicans did to Merrick Garland last year? Will he get a hearing?
SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: I will support a hearing and a vote for the president`s nominee. And as much as I regret that the court has been dragged into the muck and mire of partisan politics and severe damage done to the court, I don`t think we should deny the American people a fair consideration of the president`s nominee and accept an eight-member court as now the fait accompli. So if is it a mainstream nominee true to that tradition, I will support him or her. But someone who is at the ideological extreme, I will oppose, even though that person, in my view, should have a hearing.
MATTHEWS: Let me ask you about an issue especially important to women, but to everyone, I think, as a value issue, abortion rights. We`ve got Roe v. Wade, which has been in effect since 1973. It works in terms of it is a reasonable compromise. The early decision about having an abortion is entirely up to the woman, the patient. Later on, it becomes more difficult, involving a doctor and whatever, and the law. And when it comes to -- you know, the fetus becomes viable and that sort of thing, sort of in an acceptable compromise -- do you think that a judge who`s appointed who says, I don`t believe in Roe v. Wade really has a chance of passing muster with the Senate?
BLUMENTHAL: The answer is no because I think justice nominee who would advocate overturning Roe v. Wade is out of the mainstream. And not out of the mainstream necessarily using Roe as a litmus test, but simply disregarding long-established precedent, which has been reaffirmed. And there is a doctrine of law that a mainstream candidate would have to express adherence to this idea of what`s called stare decisis, that long- established precedent will be respected.
But I`m going to look at voting rights, civil rights, workers` rights and determine the record and background of the nominee because I have tremendous reverence and respect for the Supreme Court. I`ve argued four cases as attorney general of my state. I served as a law clerk to Justice Harry Blackmun. This institution has to be protected from the partisan damage that`s being done to it day in and day out.
MATTHEWS: How do you keep that respect after what happened in 2000, when the Supreme Court got involved in presidential politics and threw out the Florida recount, that basically said anybody can carry a gun anywhere they want, basically, that said that money counts in politics more than votes? I mean, the three right-wing decision, basically, just in the last generation -- it`s pretty strikingly partisan, I would say. Your thoughts.
BLUMENTHAL: Very strikingly partisan and part of the reason that the Supreme Court has lost its respect and even the mythological independence - - and it has been, to some extent, a myth -- is, in fact, its partisan hard right stance on many of those issues, most especially on campaign finance. Citizens United has been a disaster for the Supreme Court because it has shown that ideological divide.
The Bush case, other kinds of decisions which have indicated this partisan divide I think have been damaging to the court, but I think there is still the possibility of repairing the damage that`s been done. And certainly, in trying to address the individual merits of each nominee and making sure that nominee is in the mainstream, I think we can help lift it back somewhat. But...
MATTHEWS: Let me -- let me ask you about...
BLUMENTHAL: ... it will be a tough job (ph).
MATTHEWS: ... the issues that we talk about on this program a lot. Not capital punishment. That`s sort of a debate that`s just going to go on forever, I think. But guns -- the Heller case, the D.C. case, which basically opened up to the door to gun ownership, not with a militia, not with the language of the Constitution, the 2nd Amendment, but ignoring the militia, the need for a militia with muskets and all the old reference to - - limited (ph) the notion of what the right the bear arms meant. And bearing arms actually meant bearing a musket, and now it means anything you want carried anywhere you want.
You`re from Connecticut, which has been victimized by gun use. And I wonder where you stand on that in terms of a test for a nominee.
BLUMENTHAL: Well, here`s what I think about gun violence prevention. I think the Congress of the United States has been complicit in the 30,000 deaths ever year by failing to act on common sense, sensible measures like background checks and a ban on assault weapons and high-capacity magazines and terrorists buying guns even when they`re on the no-buy -- no-fly list.
BLUMENTHAL: I think those kinds of common sense sensible reforms are possible, fully constitutional even under Heller. So as much as Heller is questionable, I think the Congress should not rely on it as an excuse for non-action.
And I think, frankly, Chris, we are careening toward a constitutional crisis with the firing of Sally Yates and the plainly illegal and unconstitutional order on immigration that President Trump continues to defend.
The courts are ever more necessary to protect our individual rights and liberties, as you saw over the weekend with four courts stepping forward to stay those orders. And I think that the stakes have never been higher than we will see in this nominee.
MATTHEWS: I Hope when people vote every time, they remind themselves what we`re going to learn tonight, the power of the courts and how important they are as an independent branch of government.
Thank you, great man to have on tonight, particularly tonight.
BLUMENTHAL: Thank you.
MATTHEWS: Senator Richard Blumenthal of the Senate Judiciary Committee representing Connecticut.
Let`s go right now to the Supreme Court itself. NBC News justice correspondent Pete Williams is standing by with us with more on President Trump`s decision.
This is an unusual night, because dignity is a big part of the court. They wear robes. They don`t wear wigs like the British do, but they wear robes. And now we have this Miss Universe phenomenon tonight, primetime. Apparently, what we`re hearing -- you can fill this in -- he`s going to bring in the first runner-up, just like the Miss America contest, out with the guy he`s picked, and he`s going to show them off, I don`t know, like prize whatever people.
But is there an independence implied there, or is there a sense these are the people he`s choosing to have control over?
PETE WILLIAMS, NBC CORRESPONDENT: Well, frankly, I don`t know how it`s going to unfold. We know that both nominees -- both the people that we thought were the finalists, Tom Hardiman from Pennsylvania and Neil Gorsuch from Colorado, were coming here today, at last coming to the White House. Whether they will both be part of the 8:00 o`clock event or not, we don`t know.
If they were, that would be very unusual, understandable why they would both answer the summons because if either isn`t nominated today, they would like to be considered for the next possible vacancy on the Supreme Court. So they`re not really in a position to say, No, you know, this is my bowling night. So they would naturally come.
But we don`t know how it`s going to unfold. But you`re right, it`s very unusual because now with what, less than an hour before the -- it`s 45 minutes. You know, in past years, I can`t think with all the current justice on the court, when we didn`t know for a fact who it was going to be 45 minutes before the announcement. And this is undoubtedly because of great message discipline within the White House that they`re not letting people know. And it`s also, we`ve been told all day, because the president reserves the right to change his mind at the very last minute. Whether that is just all intended to amp up the level of suspense here or not, I don`t know. I don`t know how it`s actually going to unfold.
But the fact that it`s happening in the evening, the fact that they`ve kept us closely held -- what we`re told right now is there`s a reception going on at the White House for members of Congress, the leadership from both parties, certainly the Republican leaders, to meet somebody. Whether it`s nominee or both of them, I don`t know. The people that I talked to that were going to the reception weren`t quite sure how it was going to work. So this is a -- this is a different way to do it.
MATTHEWS: Let`s talk about a 49-year-old fellow from Denver, a justice out there, appellate justice, Neil Gorsuch. We`re hearing a lot about his prospects today. Why would he -- not to predict that he`s the one, although he might well be -- what would be attractive in this gentleman for people looking for a replacement for Antonin Scalia?
WILLIAMS: Well, in many ways, people say he approaches the law like Antonin Scalia. Antonin Scalia was what they call a textualist, somebody who believes that the first base for judging what a law means is not what - - looking at its effects or its legislative history, but the plain text. That was always Antonin Scalia`s approach, and that`s very much Neil Gorsuch`s approach.
He is a gifted writer. Both liberals and conservatives in the courts point out that Gorsuch`s opinions are very readable, sometimes even entertaining, if you can say that about a federal court ruling, as Scalia was a great and gifted writer, as well.
So they compare him to him. And they say that he had the same kind of originalist approach to the law. So that`s one thing. They`re both conservatives, but so`s Hardiman is a conservative, as well.
MATTHEWS: Does he break out an 18th century dictionary, like Antonin Scalia did, to find out exactly what the guys writing the Constitution and the amendments meant?
WILLIAMS: Probably a little...
WILLIAMS: Probably a little more flexible than that. But of the two, I would say that probably most conservatives would think Gorsuch is a little more on the conservative side. Neither has written opinions about what are often these dividing issues like abortions. Gorsuch has written a couple of opinions in which he`s expressed great support for the importance of religious freedom.
He was with his court when it ruled in favor of the Hobby Lobby owners, who said that even though they were a private business and weren`t exempt strictly from "Obama care" -- they weren`t a church -- they were closely held religiously-based business and they ought to be able to say they have a religious objection and should be exempted from the contraceptive requirement of "Obama care." He joined his court in saying that they agreed. And of course, the Supreme Court ruled 5 to 4 to uphold that decision.
He dissented when his court ruled against the Little Sisters of the Poor, who said that they shouldn`t even have to tell the government they object to the contraceptive coverage because even to do that would make them complicit in it. That came to the Supreme Court, as well, but it wasn`t able to resolve the case because of a 4-4 tie. So he has that religious freedom side that is very appealing to conservatives, as well.
MATTHEWS: And also bolsters the new president on the religious side, the conservative religious side, as well. Anyway, thank you, Pete Williams. I love the way you scalp this baby out. Thanks so much.
WILLIAMS: OK. You bet.
MATTHEWS: On this strange night of Miss Universe in the East Room of the White House.
Anyway, we`re now just about 45 minutes away from President Trump`s announcement of the nominee, although I think possibly we might get what we call in this basically a leak. It night leak out because those Congress people might be getting briefed on it as we speak. The United States Supreme Court nominee coming out tonight. More on that throughout this hour of HARDBALL.
Plus, President Trump fires the acting attorney general after she said she would not defend his travel ban on those seven countries that are largely Muslim.
And this is HARDBALL, where the action is.
MATTHEWS: We`re awaiting an announcement right now by President Donald Trump coming perhaps earlier, but certainly by the end of this hour. He will reveal his choice to fill the vacant seat on the Supreme Court. We`ll have it live from the East Room in the White House right here on MSNBC. And we may well hear it earlier, so keep it right here.
ANNOUNCER: We`ll be right back.
MATTHEWS: Welcome back to HARDBALL. President Trump is set to make his Supreme Court pick amid an intensifying fight over his travel ban. Last night the president fired acting Attorney General Sally Yates, the White House accused Yates of, here`s the word, "betrayal" after she would not defend the administration directive.
"The acting attorney general, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. Ms. Yates is an Obama administration appointee who is weak on borders and very weak on illegal immigration."
Well, the move has further emboldened Senate Democrats already rankled by the president`s order. Today they stole the confirmation vote on the president`s nominee for attorney general, Alabama Senator Jeff Sessions. The White House has remained defiant in the face of these challenges.
But according to The Washington Post, there`s also friction among Trump`s inner circle. "As it became evident that the roll out of the executive order bordered between clumsy and dysfunctional, people in Trump`s orbit divided over who was at fault."
Meanwhile nearly 1,000 State Department diplomats, these are public servants, and officials have signed a dissent cable in protest of the new ban.
Joining me now is the Democratic governor of Virginia, Terry McAuliffe, whose attorney general today brought legal action against that executive order. Democratic Congressman Seth Moulton of Massachusetts, a former marine, who served four tours over in Iraq. And, of course, MSNBC political analyst Michael Steele, who is the former chair of the Republican National Committee.
Governor McAuliffe, it`s unusual to have you on, but this is a big story. How does it affect the people of this country, the people who want to visit this country? How do you see it in human terms?
GOV. TERRY MCAULIFFE (D), VIRGINIA: Well, we got active on Saturday, Chris. I was tipped off that we had a family at Dulles Airport, which is in Virginia, so I immediately called my attorney general and said we need to get to Dulles Airport.
And sure enough there was a family there with two young children, both of those children had U.S. passports. And they were detained for hours. So I asked my attorney general at that point let us proceed ahead with all legal remedies available to us.
And just several hours ago we have now filed suit. This is unconstitutional. I mean, I sit here in Richmond, Virginia, I`m 60 miles away from Yorktown, which is where, as you know, the American Revolution ended, the battle ended there. We ended a monarchy. Two hundred and thirty-six years later, we`re not bringing the monarchy back to the United States of America.
The idea that this president, without consultation of the courts or the Congress, thinks he can unilaterally deny a legal permanent resident of the United States of America the availability to come back to their own country is abhorrent. We will not stand for that.
This state was built on religious freedom. And our voices will be heard. So we have gone ahead and we have filed suit. This is unconstitutional. And it violates the First Amendment, the Fifth Amendment, the Equal Protection Clause, the Due Process Clause, the Establishment Clause, and it can`t stand.
This man is not a monarchy. He is president of the United States of America. He needs to act within the law.
MATTHEWS: Let me ask you about -- Governor, is it your understanding that this law, this new ban -- he doesn`t like to call it a ban, this new whatever, covers people with green cards, permanent residents who can`t go back and forth to their former country?
MCAULIFFE: That`s right. And when I was at Dulles Airport on Saturday -- and here is the other problem, this thing was put together so poorly, with no notice to anybody, here I am, the governor of the commonwealth at Dulles International Airport, our airport in Virginia, nobody could give me any answers.
Green card folks were being denied. Legal permanent residents were being denied. And nobody, the customs, the border agents, the DHS, had not given any of us anything. No guidance, no direction. People boarded planes to come to our great country, having been vetting and given a right to come to our country, and they were denied access.
I met a mother who had a 4-year-old child who was coming in at 7:00 at night. He was detained. Finally the 4-year-old was released.
This is not the values of the United States of America, what we have fought for, the great beacon of democracy around the globe. It hurts business. It hurts national security.
You have put target on the back of every man and woman in uniform around the globe. You have hurt every business who thought about coming to America to do business.
And finally, it affects our higher education, University of Virginia, Virginia Tech, many professors, many students from around the globe, they don`t know whether they can come or go. This, the damage that this president has done to America is almost irreparable.
MATTHEWS: Let`s go to Congressman Seth Moulton, because I know you`ve got experience, four tours in Iraq. What does this do? I want to go through some categories of people, people who were translators over there.
The language barrier was enormous, these people, the ones who risked their lives to help you guys fight that war, defend their country against terrorism, the people who are our allies in government around the world, all the way from Jordan that has been a friend of ours forever, and all the other countries that have been with us, what does this do to the people and the governments that have been allied with our country against terrorism?
REP. SETH MOULTON (D), MASSACHUSETTS: Well, it shows that we don`t care about supporting them, and that we`re willing to abandon them under this new president. And it is absolutely a major threat to our national security.
ISIS is already using Trump`s executive order and his rhetoric during the campaign to recruit terrorists and to incite attacks against Americans both at home and against our troops abroad.
But when you talk about these Muslim allies who are so important to us on the ground, the guys that I worked with every single day, as translators, as intelligence sources, they put their lives on the line, Chris, not just for their country but for ours.
And we made a promise to them that we would keep them safe. That if they did that we would protect them from the terrorists who are our common enemies. And now we`re just saying we`re going to abandon them to those terrorists.
Now I have a translator who just came to the U.S. two months ago. He worked with me in 2008. I trusted him so much that I gave him a gun, I trained him with a gun so that if we ever got into a really tough spot, he could fight right alongside me.
It took him eight years to get through the vetting process with his family. And he just got here two months ago. Thank God he arrived with his family before Trump was inaugurated, because otherwise he might be getting slaughtered in Iraq right now.
MATTHEWS: Let me go to Michael Steele before -- Michael, the thing that I know, and a lot of people know, have done some checking, our system of vetting has been amazingly professional, it can take months or years even, a couple of years even to get in this country from those countries that have all that terrorism.
It`s not like Trump invented vetting. So what do you make of this ban? And you know what, they`re putting out the word it`s not a ban. It`s a ban.
MICHAEL STEELE, MSNBC POLITICAL ANALYST: Well, yes, I mean, the president himself has used that term before.
MATTHEWS: So has Spicer.
STEELE: So has Spicer and others.
I think though to both the congressman and the governor`s first point, and I think is the important point about those who are -- have green cards and those who are legal residents here, that was the problem with this whole thing. The administration, as we heard from the chief of staff this weekend is working to fix that, to revise this order to make sure that it`s clear that it does not include.
MATTHEWS: Wouldn`t they have thought -- policy-maker considered that ahead of time?
STEELE: You would think. You would think. You would think. I`m not going to even try to argue that point.
But to your question about the vetting. There is -- and we hear from folks in the intelligence community and elsewhere, that every system in this day and age is worth taking a look at and making sure that given the way those around the globe have their systems operating, we`re integrated into that. That we do have appropriate checks down stream.
So if the idea is just to update and make certain that we are doing it the best way possible, I think that`s fine.
MATTHEWS: That sounds right, but it`s not the way they`re doing it. They are saying three months a moratorium on anybody coming from those seven countries. Then a 120-day moratorium on any.
STEELE: To give them time to look at the system to make sure that they are -- that they got it right.
MATTHEWS: Governor, I know that is a good way of presenting it, but in fact the message to the world is stay away. To all the innocent people.
MCAULIFFE: Look at Google. Google had 100 employees traveling around the globe over the weekend, they told all of them to come back. I have been on the phone dealing with businesses. I have done 22 trade mission as governor. I`ve businesses I`m bringing in from all over the globe.
I`m under nondisclosure on several businesses who informed us today that even after our great work and they want to come to Virginia, they are now scared to bring their business to America.
This is what`s going to happen. This is just -- you know, we`re 72 hours into this. This is going to be crippling for U.S. economy. Businesses are not going to come here, workers are not going to want to come here. It is a global economy, with 95 percent of the world`s customers living outside of the America.
The damage that President Trump has done to our economy, has done to our national security, by putting this together, they did not put any thought in it, they rushed it through, they didn`t talk to anybody, and they are now feeling the consequences of this action.
He is not the king. He is the president, and he has to work with Congress and the courts and with the states.
STEELE: I appreciate where the governor is coming from, because I know the work that goes into that. But unless those businesses come from Somalia, Iraq, Iran, or one of the other seven states, I don`t think you have a problem. They can still come to do business in Virginia or any place else in the country.
And I think we`ve got to be fair and clear about this as opposed to going to hyperbole saying, oh, my God, businesses are running away.
MCAULIFFE: But let me disagree with that.
MCAULIFFE: That is just absolutely false. People I dealt with today, they are scared to come here no matter what country they are from.
STEELE: What are they scared of? What are they scared of?
MCAULIFFE: About the Muslims is what they`re worried about.
STEELE: Muslims are welcome to this country unless, as the order says, you`re from one of the seven states that were identified in the Obama order and consistently upheld by this particular order. So unless they come from one of those countries.
MOULTON: Let me just jump in here -- let me jump in here, because.
MATTHEWS: Seth, you`ve worked with these people. You`ve fought with them on our side, give us a last word here please.
MOULTON: Absolutely, and let me just jump in here. The Armed Services Committee in the House today met with King Abdullah of Jordan. Now Jordan is not on the list. But the strain that it has created in our relationship was palpable. Unbelievable.
So Jordan might not be on the list. Jordan is an incredibly important ally in our fight against terror. And yet it absolutely is affecting our relationship. And it will put our troops` lives at risk.
So make no mistake, no matter how ill-conceived this order was, whether it`s the right countries or the wrong countries that are involved, it`s having an affect on our national security across the globe.
MATTHEWS: Thank you so much. And thank you for your service as well.
Governor McAuliffe, thank you, sir.
MCAULIFFE: Thank you.
MATTHEWS: Seth Moulton, again. And Michael Steele.
We continue, by the way, to await word from the White House on who is going to be President Trump`s Supreme Court pick tonight. It`s coming tonight in a sort of Miss Universe kind of fashion with maybe a couple of the contestants coming out together. This is a bit like a circus.
Anyway, up next, Senator Ed Markey of Massachusetts on how far Democrats are willing to go to fight Trump`s pick when it comes in this hour. And this is HARDBALL, where the action is.
MATTHEWS: Welcome back to HARDBALL. People are starting to arrive at the East Wing of the White House now, to the East Room, in fact, where, at the top of the hour if not sooner President Trump will reveal his pick for the Supreme Court.
Then the question becomes how much resistance will the Democrats put up. Will they filibuster the nominee? And will that work? Or will there be a nuclear option that takes away the filibuster?
Joining me right now is U.S. Senator Ed Markey of Massachusetts.
Congressman Markey, give us a sense as you look at it, the stakes -- first of all the stakes, and secondly, how is this going to be decided, by filibuster, by simple majority, by what?
SEN. ED MARKEY (D), MASSACHUSETTS: Well, the stakes are high. The Republicans in the Senate decided last year that they would not even give a hearing to Merrick Garland. So they essentially stole a Supreme Court seat from President Barack Obama.
And so Donald Trump now has a chance to nominate someone to the Supreme Court and that nominee has to be within the mainstream of constitutional history in our country. That person cannot have been taking litmus tests, votes that he`s going to cast, remembering that Donald Trump said that he is going to appoint people who are going to be very, very conservative, on the far end of the ideological spectrum.
So we`re going to give anyone he nominates the closest scrutiny that anyone nominee in our country`s history has ever been given.
MATTHEWS: What about the Hobby Lobby case that Neil Gorsuch was on the other side of, where he said that if someone owns a business and has a religious commitment of some kind, not a religious order, even a religious affiliation, simply has a religious belief, they can stop giving their women under Obamacare birth control? I mean, is that a mainstream -- outside a mainstream situation for you?
MARKEY: Well, I don`t know who is going to be nominated, but I do know this, that Donald Trump has made it very clear he is going to name someone who going to cut back dramatically on the reproductive rights of women in our country.
That case fits squarely within that category. But remember, Roe V. Wade, and other very important cases that go right to the heart of a woman`s right to choose are going to be potentially before the Supreme Court in the near future.
So Hobby Lobby, Roe V. Wade, we can go down the entire list, but this one decision that the president makes, the most important decision which he can make, with the exception of putting the United States at war, is not something that the Democrats are going to allow to go through without the closest possible scrutiny.
MATTHEWS: What are your assets here? Can you demand a 60-vote plurality - - majority? Can you demand that and make it stick?
MARKEY: The history of the Senate is that there is a 60-vote threshold for the confirmation of a Supreme Court nominee. The Democrats intend on holding the Republicans to that historical standard.
Donald Trump has already said that if we don`t act quickly, that he is going to ask the Senate to change its rules and bring it down to just a bare majority.
If the Senate Republicans decide to do that, if they decide to in fact use the nuclear option, then I`m afraid there`s going to be a fundamental change in the United States Senate that will invoke the law of unintended consequences not just for this Congress, but for Congresses to come. It would be such a dramatic change with history.
MATTHEWS: We live in uncertain times. Thank you very much, Senator Ed Markey of Massachusetts.
Up next, the future of the Supreme Court, if Trump gets more picks, he could turn this court solidly right for a generation. Just think about it, there are some very old judges right now on the Supreme Court. If three of them leave, it could be 7-2 by the time Trump is gone.
You`re watching HARDBALL -- 7-2 on the right. You`re watching HARDBALL, where the action is.
CHRIS MATTHEWS, MSNBC ANCHOR: Welcome back to HARDBALL.
Last year was a blockbuster year for Supreme Court after it ruled on a number of high profile cases involving immigration, abortion, and, of course, the Affordable Care Act, Obamacare. This year`s docket selected by current eight justices is significantly lower profile, given the court`s wakeup or balance of power -- makeup actually not wakeup.
But tonight`s selection of an associate justice will influence the direction of the country and the court on major issues like transgender rights, immigration rights, abortion rights, of course.
For more, I`m joined by our roundtable tonight, Yamiche, Alcindor, national reporter for "The New York Times", an MSNBC contributor, Eugene Robinson, columnist for "The Washington Post", also an MSNBC contributor, and Ed Brookover, a GOP strategist and Trump supporter.
Let`s talk about the elections, you know, elections matter.
EUGENE ROBINSON, THE WASHINGTON POST: Yes.
MATTHEWS: We`re learning that tonight.
What are the pro-life people who backed Trump like states like Pennsylvania, which we know about, what do they want realistically or politically from this new president in terms of the Supreme Court make up?
ED BROOKOVER, FORMER ARIZONA GOP CHAIR: I think one of the key moments of the Trump campaign was last spring when he announced his list of potential Supreme Court justices. It gave the conservative a sense that he was going to work with them on what they considered one of the most important elections of this -- most important issue for election system. So, I believe what they want is a judge who`s consistent, of that list, somebody who they have a history with, someone who they`re comfortable is going to uphold the values they see that they want and dear to their hearts.
MATTHEWS: Yamiche, that list didn`t do badly. It didn`t get whacked and say, here`s a bunch of crazy right wingers. It was accepted as well. American Bar Association type people, these are reasonable conservatives.
YAMICHE ALCINDOR, THE NEW YORK TIMES: They`re reasonable people, but I think the thing that I got from talking to a lot of these marchers, those at the March for Life, they want someone who`s going to restrict abortion as much as possible. I don`t think -- most of them don`t think that Roe v. Wade is going to be somehow overturned. But they really want it to be like Texas, like others --
MATTHEWS: What`s the cutting edge? What`s the issue that could go to their favor, 20-week?
ALCINDOR: Yes, anything beyond 20 weeks, also being able to have ultrasound, being able to have clinics that have hospital rights. So, there are issues of trying to engage the woman before the abortion to prove to her that this person inside of her, the fetus inside of her is someone that`s not deserving --
MATTHEWS: The Texas one is very clever, Gene, because it basically says clinic has to have all the apparatus of a major hospital.
ROBINSON: Right, right.
MATTHEWS: It`s very smart of your political person on the right.
ROBINSON: It would be totally contested because basically wipes out a lot of clinics that did abortion. They`re obviously not, you know, that many full hospitals and it requires women -- would require women to drive or be conveyed many hundreds of mile in many cases.
MATTHEWS: OK, Webster and Casey that`s an undue burden.
ROBINSON: I think that`s undue burden to me.
MATTHEWS: Let me ask you about other issues. How about Citizens United? Is that the right too spend as much such you can for a candidate basically.
BROOKOVER: You know, it`s free speech. I think that in today`s world --
MATTHEWS: You`re with George Will on this one?
BROOKOVER: I am definitely with George Will on this one. You know, in today`s world, we have instant. We can have instant identification who the donors are, put them out there. If you want to vote against somebody because I donated money to them (ph), vote against me.
ROBINSON: But the problem is we don`t have instant identification of the donors. There`s a lot of political money that goes into various kinds of organization that isn`t disclosed. So, you know, if you`re going to trade full instant disclosure for this sort --
BROOKOVER: I`ll make that deal with you tonight. I`ll make that deal with you tonight.
ROBINSON: Well, yes, get other people to make the deal. A lot of people don`t want to make that deal. What you get is unlimited money and no disclosure.
BROOKOVER: I think you have more than you think it would be --
MATTHEWS: OK. These guys start buying presidents for the day they`re born. I mean, there`s a library, it`s everything. I`m sorry, the foundation, if they can kind a way to shovel money toward a politician, they will find a door or window open.
The roundtable is -- I know it sounds cynical. The roundtable is sticking with us as we await President Trump`s big decision of the Supreme Court nominee.
This is HARDBALL, where the action is.
MATTHEWS: You`re looking at a live picture right now of the White House, where at the top of the hour, we`re expecting President Trump to announce his pick for the Supreme Court.
NBC`s Peter Alexander is there in the East Room itself, where the president will make the announcement.
Peter, who are those people in the room? Who`s been invited to this event?
PETER ALEXANDER, NBC NEWS CORRESPONDENT: Well, Chris, it`s different screen you wouldn`t have see two weeks. It`s a ton of Republicans to say the least right now. Just moments ago, I saw House Speaker Paul Ryan enter the room. We have all sorts of Republican senators. Tim Scott is here, John Thune. Mitch McConnell is expected to be here this evening as well.
To give you a sense of uniqueness of this moment, both of Donald Trump`s adult sons are here. Donald Trump Jr. and Eric Trump are also in the room.
I short time ago, we spoke a senior White House official who told us, there`s only one of the two finalists, only one of those two contenders who ultimately made trip here to Washington D.C. today. They have been invited. But that just gives you some sense that there isn`t going to be some grand reveal behind the curtain before where both understanding, only one of them walks out. We know only one of them is here on this occasion tonight.
Right in the front row in front of where Donald Trump will arrive for his major announcement of its kind is Kellyanne Conway and several of President Trump`s aides as well -- Chris.
MATTHEWS: Why would the family members be in such an event? It makes seem like a presidential event, you know, like the new Supreme Court associate justice will be part of the Trump family now? I mean, I`m sorry, the coloration sounds like it`s something in-house now.
The Republicans, are they going to cheer? Is that what it`s about? The cheering section?
ALEXANDER: Well, hey, this is how it`s been. I have been in all sort of news conferences with Donald Trump over the course of the campaign. And routinely, they would put the press way back in the corner, so you would always hear that cheering section for everything he said. It was almost real time fact-check to sort of push back on anything we tried to challenge him on. In terms of the Trump sons being here, a lot of people are going to raise questions as they`re supposed to be this new separation between the Trump organization and the Trump presidency.
MATTHEWS: Yes. It looks more and more like the Romanoffs.
Anyway, thank you. NBC`s Peter Alexander at the White House. The announcement coming at the top hour.
We`ll be right back.
MATTHEWS: We`re back with our roundtable as we continue to wait on President Trump and the announcement of his nomination for the United States Supreme Court.
Yamiche, I want to ask you about -- well, first, tell me something I don`t know.
ALCINDOR: Something you don`t know is that Betsy DeVos might be in trouble with even Republicans. I was at her hearing today.
MATTHEWS: Murkowski and Collins, any other troubles?
ALCINDOR: I`ve heard of other people that are being targeted and I think the reasons are that the protest campaign is really getting to senators. There are millions of people calling in and I think they might be feeling the pressure.
MATTHEWS: Bear up with my cynicism. This is the NEA and AFT, the unions. That`s it. Isn`t it? After all the talk, it`s the power of the teachers` union?
ALCINDOR: Well, I think there are also some protesters that are more grassroots like Black Lives Matter protesters and other people that are into civil rights and LGBT issues that are also pushing back against her because she has those views against -- and she supported those kind of conversion --
MATTHEWS: Those are Trump`s views. Her views are Trump`s views.
ALCINDOR: The point is that the people who did not vote for Trump are putting pressure on that.
MATTHEWS: OK, Eugene?
ROBINSON: I was just in Michigan and Governor Rick Snyder is going to have a real tightrope to walk on this travel ban and the refugee ban because Michigan is home to hundreds of thousands of Arab-Americans, the biggest Arab-American --
ROBINSON: Dearborn is the sort of epicenter, but other parts of the state as well.
MATTHEWS: Where are they mostly from? Are they Syrian? Are they --
ROBINSON: Well, there are a lot of Syrians, a lot of Lebanese Americans. A lot of people, but they are very deep and broad connections with Syria there in particular. And people feel very passionately about this issue and personally about this issue because everybody seems to know somebody who is personally affected, a woman who -- I spoke to a woman whose daughter is getting married to a guy from Syria and he`s out of the country, he cannot come for the wedding.
MATTHEWS: Is there a broad sympathy for them?
ROBINSON: There is a sympathy that to me anecdotally seemed to kind of cross political lines because, again, these are your neighbors, people you know.
MATTHEWS: Yes, I know.
ROBINSON: And it`s going to be difficult for Governor Snyder who has been very careful in his response. He generally wants to be supportive of President Trump, but at the same time, we need more information. We need to have a dialogue.
MATTHEWS: All politics is local, Gene. Anyway, it`s OK in my backyard. It`s basically the other version.
BROOKOVER: So, key Republican donors in Arizona are looking for a Republican to run against Jeff Flake. Names, high profile names --
MATTHEWS: To the right?
BROOKOVER: Well, it`s more, you remember the Flake-Trump tit-for-tat (ph) during the campaign. We`re talking about people like State Treasurer Jeff DeWitt or --
MATTHEWS: They`re going to somebody who`s more Trumpian?
BROOKOVER: They want somebody they think is more like them first and that appears to be a little bit more Trumpian.
MATTHEWS: I think Flake is great. I guess that`s his problem.
ROBINSON: You like him, that`s a problem.
MATTHEWS: I`ve always confused by -- is Arizona -- retirees from the Midwest, who are the people that live there and dominate politics? I always thought it was snow birds.
BROOKOVER: The state has grown so much. A lot of Californians and just general growth there. It`s just a new state.
MATTHEWS: Let`s bring in MSNBC`s chief legal correspondent Ari Melber who has been following this thing like a bandit right now.
Ari, who is it going to be, on the line? Is it Neil Gorsuch?
ARI MELBER, MSNBC LEGAL CHIEF CORRESPONDENT: I`m not that smart. I will tell you this about Neil Gorsuch. People want to make America great again. A lot of legal conservatives want to make the court originalist again. After Justice Scalia, clearly, one of the most favored on the right.
And Neil Gorsuch is someone who has talked openly, as open at least as a federal judge can be, about his allegiance to Justice Scalia`s approach. The way he looks at the text, the way he looks at original meaning.
He spoke after Justice Scalia`s passing to a public audience, saying that he was on the ski slopes, going down the slopes, got the call that Justice Scalia died and he was crying uncontrollably. He had trouble getting down the mountain, went on to give a big talk, tribute to him.
This is someone who spoken both personally and professionally about Justice Scalia and we do know conservatives are looking for a Scalia to fill what they call the Scalia seat, Chris.
MATTHEWS: Let`s talk the politics of this. Donald Trump is not a natural fit as a pro-lifer. He adopted that position in the campaign, having probably not had that position before. That`s to say, to put it lightly.
When he was on the show with me trying to explain his pro-life position, he said the woman has to be punished in some way. He`s not really up to date or hadn`t been on what the right-to-life position is.
Is this a way for him to snuggle up with the right-to-life people on this cultural question, this values question by picking somebody who`s clearly right to life?
MELBER: Yes, I think that`s absolutely the politics. Guns and abortion are the animating issues for judicial conservatives, for Heritage, and Federalist Society who we know according to reporting had had influence here.
You put it rather diplomatically, Chris. The bottom line is as a candidate, Donald Trump withered under your questioning. He revealed he did not understand the legal and statutory lines or ambitions of the pro- life movement, as you knew and he didn`t at the time, even a very harsh pro-life approach to criminalizing abortion does not mean criminalizing the women who get them.
It would mean criminalizing it at a different level of the law at abortion providers, health care centers or doctors, not the women. That`s just a fact about what they have said they want, what they`ve written they want. Donald Trump at the time didn`t know it, you did. That came out in the interview.
Now, as for your question, yes, both of these candidates understood to be pro-life. I think it`s fair to say that Neil Gorsuch has more opinions in that area. Indeed, he wrote rather passionately and eloquently in the Obamacare challenges about the idea that there has to be room in the law for people who believe the fetus is a human life that that is protected.
MATTHEWS: Thank you so much. Ari Melber, our chief legal correspondent for MSNBC.
Let me go back to Ed.
Explain, what -- in the Parthenon of issues, or the list of issues, what`s the most important to conservatives? Is it gun rights? Abortion -- protection against abortion or whatever?
BROOKOVER: It is a --
MATTHEWS: Or the right to spend all you can in a campaign?
BROOKOVER: I don`t -- well, you know, that could be because it`s about that sort of protecting both the Constitution and the Bill of Rights to protect the individuals against our government and so -- and people who take a hard look at protecting those rights are who conservatives will take a look at.
MATTHEWS: Gene, what`s going to be the splashy news tonight if it`s Gorsuch?
ROBINSON: Oh, no, I mean --
MATTHEWS: It`s going to be religious right.
ROBINSON: Trump makes the pick, what do the Democrats do, I think.
MATTHEWS: But you heard Senator Markey on the program, he said they`re going to insist on the 60 vote, but they can`t really insist on the 60-vote to the bottom line because it`s up to Republicans to decide they`re going to drop it. But then, again, I believe from inside reporting that I think they like the 60-vote rule. They don`t want to throw it out either. Nobody wants to throw it, because that gives the Senate its balance.
ALCINDOR: I don`t think they want to throw it out but I think Democrats are going to be under intense pressure from their own base to be obstructionist. I just got off the --
MATTHEWS: Just say no?
ALCINDOR: Yes, all these protesters are outside Chuck Schumer`s house right now.
MATTHEWS: Outside his house?
ALCINDOR: Yes, like protesting against him saying, why did you vote for any of these nominees? So people are in this kind of polarized condition where the left is like, we want to be like the Tea Party and we want to be as hard as possible.
ROBINSON: It`s a political calculation though. Do Democrats want to change the subject totally to the Supreme Court? Because, frankly, they`re making hay with the refugee ban and the immigration ban.
ROBINSON: And I think they might -- I don`t think they want that to disappear from public consciousness which it would if they just take an absolute no.
MATTHEWS: Gene, you and I and Yamiche, we watch him -- you watch him as a supporter. We watched Trump`s ability to dominate the news. Was this thing timed tonight to get him away from the ban problem, the Muslim ban?
ROBINSON: Well, it doesn`t hurt.
Anyway, Yamiche Alcindor, thank you. Gene Robinson, well said and understated; Ed Brookover.
That`s HARDBALL for now. Thanks for being on a big news right now.
Stay with us. Donald Trump about to announce the appointment of the Supreme Court associate justice and Chris Hayes picks our coverage up right now.
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