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updated 7/10/2009 10:13:43 AM ET 2009-07-10T14:13:43

Guest: Hampton Pearson, Rep. Silvestre Reyes, Rep. Mac Thornberry, Steve McMahon, Todd Harris, Eugene Robinson, Michael Isikoff, Monica Youn

LAWRENCE O‘DONNELL, GUEST HOST:  It‘s the Congress versus the CIA - again.

Let‘s play HARDBALL.

Good evening.  I‘m Lawrence O‘Donnell, sitting in for Chris Matthews, in New York.

Leading off tonight: The CIA and Congress are at it again.  House Democrats are now charging the CIA with misleading members of Congress for eight years about a classified program, beginning in 2001.  Now, is this confirmation of Speaker Nancy Pelosi‘s much-ridiculed charge a couple of months ago that the CIA misled her about waterboarding, or is this something else entirely?  We have the chairman of the House Intelligence Committee joining us in a moment to tell us what he thinks the CIA is really up to.

Also, we have late-breaking news here at the political sex scandal desk.  Late today, we learned that the lawyer for John Ensign, senator from Nevada, says that the senator‘s parents gave nearly $100,000 to Ensign‘s mistress and her family.  Political fall-out for this and the Republicans could be disastrous, and the HARDBALL strategists are going to debate exactly how the Republicans should be handling this one.

Plus: Who is the real Sonia Sotomayor?  Is she the radical lefty that her critics want to portray, or is she the sober, careful moderate admired by her supporters?  We‘ll talk to someone who has just finished a study of her judicial record.

Also, President Obama probably can‘t get back from overseas fast enough.  The Gallup poll shows his latest numbers are still strong, but they are slipping.  We‘ll look at that in the “Politics Fix.”

And finally, what does it mean to “pull a Palin”?  The term is now officially in the new on-line urban dictionary.  We‘ll fill you in on what it means in the HARDBALL “Sideshow.”

But we begin—the charge by Democrats that the CIA has misled Congress beginning in 2001.  Congressman Silvestre Reyes of Texas is the Democratic chairman of the Select Intelligence Committee in the House of Representatives, and Texas Republican congressman Mac Thornberry is also a member of that committee.

Mr. Chairman, describe how we came to know in the last 24 hours that there‘s an accusation going from you to the CIA that you have been lied to about a secret program for the last eight years.

REP. SILVESTRE REYES (D-TX), INTELLIGENCE COMMITTEE CHAIRMAN:  Yes, I wrote a letter to my ranking member, Peter Hoekstra, asking that we set aside the issues that have been swirling around with the controversy of who knew what, when, and that we focus on getting the authorization bill to the floor voted out so that we can go to the Senate, who we‘re told will be marking up next week.

In the letter, I mentioned that we have learned over the course of the last few weeks—we‘ve gotten more information on shortcomings—

I‘ll describe them that way—that the CIA has not fully informed our committee, that at least in one instance, we feel they have lied to the committee.

O‘DONNELL:  Yes, your letter seems—as you said, it uses the word “lied.”  It‘s stronger than just a phrasing like “shortcomings.”  Let‘s take a look at it, that you wrote to your Republican colleague on the committee.

You said, “Like you, I was greatly concerned with the notification the committee received on June 24th, 2009, from Director Panetta.”  This apparently is the admission by Panetta that they had a program that you were not told about.  You said, “This along with other recent notification has brought to light significant information on the inadequacy of reporting to the committee.  These notifications have led me to conclude that this committee has been misled, has not been provided full and complete notifications, and in at least one case was affirmatively lied to.”

Now, Mr. Chairman, you make reference to other instances beyond what Leon Panetta discussed with you recently.  In that, are you trying to specifically refer to the controversy involving Nancy Pelosi and whether or not she was lied to about waterboarding?

REYES:  I am not because I was not there and have no idea what information was provided to the Speaker.  These are separate instances that the committee has become aware of.

O‘DONNELL:  Congressman Thornberry, what do you make of this?  Were you shocked by what Leon Panetta had to tell the committee?

REP. MAC THORNBERRY (R-TX), INTELLIGENCE COMMITTEE:  What I make of it is that this is more about political cover for the Speaker than it is anything else.  We get briefings regularly on issues, and since I‘ve been on the committee, there have always been issues about notifications, about when we‘re notified, how soon we‘re notified, how full the notification is.  But what‘s unusual in this case is that it was more than two weeks ago when this briefing occurred, and yet it was only two days ago, just as the CIA budget bill is coming to the floor, that all of this gets made public.

O‘DONNELL:  Congressman Thornberry...

THORNBERRY:  So it looks like it‘s more political.

O‘DONNELL:  ... in your time on the committee, has the CIA director ever walked in there, sat down with you and told you you have been misled about a program, a secret program, for eight years?  Is this the first time that‘s happened to you?

THORNBERRY:  I don‘t remember that happening this time.  We do get information about programs regularly, and then part of our job is to ask more questions and see, Should we have been notified about this?  Who knew about it?  Did this rise to a certain level?  So there‘s definitely questions that need to be asked and answered in this case, but that‘s very different from going out and saying, The CIA lied, so the Speaker must be right.  That just is part of this political bolstering of a Speaker that got in trouble.

O‘DONNELL:  So are you saying that your Democratic colleague and chairman that we have here on the show right now is misleading our audience about what Leon Panetta revealed to this committee?  You were there, the chairman was there.  Are you telling me that what you just heard your chairman say is not true?

THORNBERRY:  I heard what Director Panetta said.  He brought a matter to our attention that had not been brought to our attention before.  I don‘t know that it necessarily should have, and I certainly don‘t know that the committee was intentionally lied to about that matter.  There are more questions to be asked, but I think those—our homework needs to be done before we adopt a “Ready, shoot, aim” sort of mentality.

O‘DONNELL:  Well, Congressman Thornberry, before I go back to the chairman, let me just read to you something I know you‘ve read before, which is the statute, the National Security Act, which specifies exactly what the CIA must reveal to Congress.  It says, and has said in law since 1947, “The CIA shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity.”

So what it is saying is the CIA must inform you when they anticipate doing something.  They must then inform you when they are currently doing something.  And what Leon Panetta came in there and said, and you‘ve just agreed that he said, that they were conducting a secret program that you were not told about for eight years.  How can you look at that as anything but a violation of the law we just read?

THORNBERRY:  Number one, you only read a portion of the law.  There are a number of exceptions that are listed later.  Number two, Director Panetta came and brought to our attention a matter that he thought needed to be brought to our attention, and all of us appreciate that.  That is very different from jumping to a conclusion that says they violated the law or that they intentionally lied to Congress.

And the problem here is that you throw out that allegation, and nobody can back it up and nobody can contradict it because it‘s all classified information.  That‘s part of the reason, as well as the timing, that this looks like it‘s more political than it is anything else.

O‘DONNELL:  Mr. Chairman, tell your Republican colleague here what it is—at least conceptually, what it is he should have been listening to that Leon Panetta said that has provoked this reaction from your side of the committee.

REYES:  Well, first of all, Congressman Thornberry is a good friend of mine and I am disappointed that he‘s trying to put a spin on information that, clearly, all of us in the committee heard, including the ranking member, who reacted much the way that all of us reacted to that information.  Like Congressman Thornberry, I can‘t say enough about what a stand-up guy Director Panetta is because he brought this information to the committee probably less than 24 hours after he found out about that.

But the record is clear.  We‘re going to—we‘re in the process of evaluating what our next steps are going to be.  I am disappointed that we can‘t seem to get beyond the politics and get the authorization bill on the floor, get it voted out and get it conferenced with the Senate so that we can support the hard-working men and women of the—both the Central Intelligence Agency and the other 15 agencies that are protecting our national security.

O‘DONNELL:  Congressman Thornberry, if you and other Republicans who were in that meeting are now saying that what we‘re really dealing with here is just some Democratic-inspired political spin, are you saying that the CIA director, Democrat Leon Panetta, the CIA director, came up to the House Intelligence Committee to feed them political spin, that he did not come up to give them serious and important information that they need to know, that the CIA was legally obligated to deliver to them?

THORNBERRY:  Of course not.  And let me point out, Director Panetta has reaffirmed as recently as within the past two days that the CIA does not lie and does not have a policy of lying.

O‘DONNELL:  Well, let me clarify.  He reaffirmed what the policy is.

THORNBERRY:  Exactly.

O‘DONNELL:  That‘s like saying, This is what the speed limit is on the interstate.  It doesn‘t mean everybody observes is every minute.

THORNBERRY:  When asked specifically about this issue—and here‘s the point.  Yes, there are questions that need to be asked and answered.  My problem is jumping to conclusions and making those conclusions public just when the bill is coming to the floor in an effort to prevent other questions from being asked about the Speaker.  And that‘s what‘s troubling about this.

O‘DONNELL:  All right, let‘s go to the Speaker.  Let‘s listen to what Speaker Pelosi said about the CIA back in May, when she was in her own back-and-forth about who told who what, when.  Let‘s listen.

(BEGIN VIDEO CLIP)

REP. NANCY PELOSI (D-CA), SPEAKER OF THE HOUSE:  I‘m telling you that they talked about interrogations that they had done and said, We want to use enhanced techniques, and we have legal opinions that say that they are OK.  We are not using waterboarding.  That‘s the only mention, that they were not using it.  And we now know that earlier, they were.  So yes, I am saying that they are misleading—that the CIA was misleading the Congress.

(END VIDEO CLIP)

O‘DONNELL:  Mr. Chairman, the Speaker now takes her place among a long list of members of Congress and the Senate over many decades who have accused the CIA of misleading them in different situations.  Is what you‘re revealing this week in any sense supportive of what Speaker Pelosi said in that press conference?

REYES:  Well, first, let me make two points.  The first one is this is not about Speaker Pelosi because none of us were there and don‘t know what kind of information she got.  This is about taking the bill to the floor.  This is—my thinking was, Let‘s set aside these political issues.  Let‘s get the bill debated.  Let‘s get it voted on, and let‘s get ready to conference with the Senate.  It is not, at least from my perspective, anything to do with the Speaker.

O‘DONNELL:  And Congressman Thornberry, I just want to back over this point one more time because you seem to be minimizing the idea of what Leon Panetta brought to you.  In your experience on the Intelligence Committee, no CIA director has ever previously walked in there and revealed to you that they were conducting a secret program for eight years that they were supposed to inform you about and had not informed you about, as the law requires.  You‘ve never had that experience with a CIA director‘s briefing before in your career on this committee, is that right?

THORNBERRY:  No, there‘s a lot in your question that I don‘t agree with.  It is regularly the case that we get briefings about things we did not know about.  And we have continued to have issues back and forth with the administration about what we should have known about and should have been notified about, and I think those issues certainly need to be pursued in this case.

What is different here is that some people are jumping to conclusions at a politically opportune time, rather than getting down in the weeds and finding out whether we should have been notified and exactly when what, happened, where.

O‘DONNELL:  So on the final word on this one today, Congressman Thornberry, you apparently agree with your chairman that what the CIA did in this case, as described by Leon Panetta, should be investigated by your committee.

THORNBERRY:  Of course, we should.  And we should do that before we start sending out letters to the press and making a lot of public statements about it.

O‘DONNELL:  All right.  Thank you, Chairman Silvestre Reyes and Congressman Mac Thornberry.

Coming up: A lawyer for Republican senator John Ensign says the senator‘s parents—his parents—gave nearly $100,000 to his mistress and her family.  Can Senator Ensign survive this scandal?  We‘ll get into it with our strategists next.

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

O‘DONNELL:  Welcome back to HARDBALL.  Republican senator John Ensign of Nevada, who admitted to an extramarital affair a couple of weeks ago, today admits that his parents gave nearly $100,000 to his mistress and her family.  How can Republicans keep these embarrassing episodes, these mounting Republican sex scandals, from hurting the party any more than it already has?  And how should the Democrats react?

For that, we bring in the strategists, Democrat Steve McMahon and Republican Todd Harris.  Now, Steve, I‘m going to start with you today...

STEVE MCMAHON, DEMOCRATIC STRATEGIST:  OK.

O‘DONNELL:  ... because I think I know your answer.  You can get out of the way quickly and let Todd fend for himself for the rest of this segment.

(LAUGHTER)

O‘DONNELL:  What should the Democrats do in a situation like this?  And my guess is you‘re going to say they should sit back and watch.  Go ahead, please.

MCMAHON:  Yes, it was the great Lee Atwater who once said that when your opponents are self-destructing, the best thing to do is to get out of the way.  And I think that would be the best advice for Democrats, get out of the way and enjoy the spectacle because that‘s really what it is here, it‘s a spectacle.  It‘s too bad for these people‘s families, but boy it‘s just—it‘s great television and it‘s probably great ratings.

O‘DONNELL:  All right, Steve, get out of the way and enjoy the spectacle.  Let Todd sweat here.  We‘re going to—we‘ve got now this letter from Senator Ensign‘s attorney that I haven‘t read yet, that‘s just being put in front of us here.  Senator Ensign‘s attorney put out a statement today that reads, in part, “In April 2008, Senator John Ensign‘s parents each made gifts to Doug Hampton, Cindy Hampton and two of their children in the form of a check totaling $96,000.  Each gift was limited to $12,000.  The payments were made as gifts, accepted as gifts, and complied with tax rules governing gifts.  After the senator told his parents about the affair, his parents decided to make the gifts out of concern for the wellbeing of long-time family friends during a difficult time.  The gifts are consistent with a pattern of generosity by the Ensign family to the Hamptons and others.”

Oh, boy!  Todd...

(LAUGHTER)

O‘DONNELL:  ... where do you guys go from here? 

Now, let me just point out for the audience, $12,000 is the IRS limit on nontaxable gifts.  If they gave—if he gave $13,000, there would be a tax on the $1,000 above the $12,000.  So, $12,000 was a very carefully picked number.  They‘re called gifts by the lawyer.  There are ways of looking at the world in which those could be called bribes. 

Am I—am I being too cynical about that? 

HARRIS:  Well, yes, I think we‘re going to learn a lot more in the coming maybe even hours, certainly days and weeks. 

I think there are two issues here.  The first is the handling of all of this.  And Senator Ensign and the people around him broke probably the two most important cardinal rules of dealing with crisis communications. 

The first one is get all of the bad stuff out there in one news cycle.  They should have included this information when he first made this disclosure.  Obviously, people were aware of it.  They should have said all of this up front.  One horrible news cycle is much better than a drip, drip of several really bad cycles. 

And the second rule that they broke was, when you violate rule number one, and you have more bad information to dump out, do it on a day when the world‘s attention is somewhere else.  They should have slipped this out when everyone was trying to figure out where the hell Mark Sanford was, whether he was in the Appalachian Mountains, and buried the story. 

But they didn‘t do any of that.  So, now what they have got is a story of their own, headlines of their own.  And the short answer to your question is, yes, this is, of course, a continued problem for the Republican Party.

And the thing that‘s so frustrating about this, for me at least, is that it‘s coming just at the time when we, as Republicans, were really starting to make some traction with some of our issue contrasts with the Obama administration, whether it‘s their wasteful spending, massive increase of government, government takeover of the health care system. 

We were making real progress challenging the administration on all of these policies, and now this is going to throw everything, at least for a day or two, everything off-track. 

(CROSSTALK)

MCMAHON:  You know, Lawrence...

HARRIS:  It‘s very frustrating.

O‘DONNELL:  Go ahead, Steve.  You want to jump in here?

MCMAHON:  There—there—well, there‘s actually a rule that Todd forgot to mention. 

O‘DONNELL:  OK.

MCMAHON:  And that‘s don‘t break the law.  Don‘t break the law. 

HARRIS:  Well, we don‘t know about that. 

MCMAHON:  It‘s a pretty simple rule.  It‘s a rule that most Americans...

MCMAHON:  Well, we do know about that, Todd, because this wasn‘t the $25,000 of severance money, which wasn‘t severance money, by the way.  Severance money is what you give an employee when you lay them off.  It‘s not money that you give your mistress to stay quiet.

And the gift money—you know, the IRS has a very specific definition of what a gift is.  And it—and it says that you expect nothing in return and you got no consideration in exchange. 

And what these people clearly expected in return was silence.  They wanted to quell a political scandal.  And it wasn‘t a gift.  It was a payoff.  It was a bribe, and it was illegal.  And that‘s the one thing that they did that‘s the most serious thing, in my opinion. 

O‘DONNELL:  Steve, I like that you‘re sitting back and relaxing and letting the Republicans sink on this by themselves, and not doing...

(CROSSTALK)

MCMAHON:  Well, they‘re sinking on their own. 

(LAUGHTER)

O‘DONNELL:  I like you‘re not doing any homework, like looking at the tax code, to fan the flames of what‘s going on here. 

(LAUGHTER)

O‘DONNELL:  Taking a closer look at the tax code than I did. 

(LAUGHTER)

MCMAHON:  I just remember it from tax class in law school.  That‘s all. 

O‘DONNELL:  Right. 

So, this is—you know, we have got a cumulative effect here, Todd.  We have got Sanford, you know, and—and we have got Ensign, and it—it—it seems like Sanford may have survived in South Carolina.  There isn‘t really a process in place that—that would be removing him.

Do Michael Steele and Mitch McConnell and the leaders of the Republican Party have to sit down and have a sex scandal meeting and say, which one of these guys do we have to sacrifice, do we have to get rid of now, in the next couple of weeks to send the message to our family-values voters that we have not wandered completely away from where they want us to be?

HARRIS:  Well, I think someone needs to send a pretty clear signal that the party doesn‘t stand for this kind of behavior.  Now, just to be clear here, there are horrible, egregious sex scandals on both sides of the aisle, and...

(CROSSTALK)

O‘DONNELL:  Not this week, and not last week. 

(LAUGHTER)

HARRIS:  Right, not this week.

But, you know, the—the Ensign scandal mirrors almost perfectly what Gavin Newsom did.  He‘s now, you know, the front-runner to be the Democratic nominee for governor of California, had an affair with the wife of one of his staffers.  It‘s the exact same thing. 

So, no party...

MCMAHON:  Did his parents pay $100,000 to keep her quiet? 

HARRIS:  So, no party—no, I think...

MCMAHON:  Did his—Did his parents pay $100,000 to keep her quiet?

(CROSSTALK)

HARRIS:  I think Mayor Newsom could probably afford to pay them himself. 

MCMAHON:  But do you think he did?

HARRIS:  But no one party has a monopoly on—on this kind of behavior.  It‘s—you know, I‘m not going to make any excuses for it.

And—and, yes, frankly, it does open the Republican Party up to charges of—of hypocrisy.  You know, I‘m not going to deny that.  I—as a Republican, and as someone who runs campaigns for a living, it‘s very frustrating for me. 

O‘DONNELL:  Look, Democrats, and Steve and their—you know, when they feel like it, are going to be calling this hush money.  I don‘t see how you can call it anything else. 

There‘s just no conceivable definition of what this money is, other than hush money.  How does Senator Ensign continue?  How does he, for example, try to raise money to—to keep himself in office, when we already know this is what he‘s doing with his—with his Senate payroll?  He‘s using it for hush money in certain situations.  He has to ask the parents to help him out with the mistress.

I just don‘t see how Senator Ensign gets to go forward from here.  Tell me how he can do it.  What do you recommend for him to go, assuming we now know everything, which is a very big assumption in the Ensign case?  But let‘s just assume, for now, Todd, this is it; nothing else is coming out. 

What does Ensign—how does Ensign get from here to his next election? 

HARRIS:  Well, I mean, he‘s got to lay low for a while.  I would focus on the day-to-day constituent work of being a United States senator, get out of the spotlight.  Pray and hope to God that there are no more revelations, because that would be really crippling. 

But, you know, if—if you rewind a day, a lot of people were saying, it looks like Ensign got through this, because we hadn‘t heard anything new.  So, now there‘s this huge new bombshell, which they should have taken care of a few weeks ago, when this first came up. 

I think, if there‘s nothing new, this is Nevada.  Voters are fairly libertarian.  You know, it‘s home of Las Vegas.  What happens in Vegas stays in Vegas.  They‘re very understanding, Nevada voters.  But they have got to contain this. 

O‘DONNELL:  Steve, quick, one-word answer.  Good idea for the Democrats to bring this into the Senate Ethics Committee to check out what Ensign was up to with his Senate payroll?  Good idea for the Democrats to do that, yes or no? 

MCMAHON:  I‘m not sure they‘re going to have any choice, because someone is going to file a complaint, and it‘s going to end up there. 

O‘DONNELL:  All right, Steve McMahon and Todd Harris. 

MCMAHON:  Thank you. 

O‘DONNELL:  Up next:  Wondering what it means to pull a Palin?  It‘s one of the newest entries in the online Urban Dictionary.  And we will tell what you it means next in the “Sideshow.”

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

O‘DONNELL:  Welcome back to HARDBALL.  We have breaking news from Chicago. 

Appointed Illinois Senator Roland Burris, who took President Obama‘s seat in the United States Senate, has announced that he has decided not to seek election to that seat next year in 2010.  “The Chicago Sun-Times” is reporting, Burris will announce his decision tomorrow.  We will have more later in the hour. 

Time now for the “Sideshow.”

First up:  Presidential gifts at the G8 Summit are not as diplomatic as you might expect.  Consider Brazil‘s gift to President Obama.  Last month, the American soccer team was on the verge of a major upset, up 2-0 at halftime against the heavily favored Brazilians.  But the fairy tale didn‘t make it to the end of the game.

The U.S. ended with a tough 3-2 loss.  So, fast-forward to this morning.  Brazil‘s president gave Barack Obama a big Brazilian soccer jersey signed by the entire team.  According to the president‘s spokesman, Obama left the meeting vowing, good-naturedly, that the Americans would not lose a 2-0 lead again. 

Next up:  How is this for a quick turnaround?  Urban Dictionary, which is hipper than Webster‘s, has already got an entry referencing Governor Sarah Palin‘s strange announcement last week that she‘s resigning.  They‘re using the phrase “pulling a Palin.”

Here are the definitions: one, quitting when the going gets tough; two, abandoning the responsibility entrusted to you by your neighbors for book advances and to make money on the lecture circuit; number three, bizarre move that will damn ambitions for higher office. 

There‘s Sarah Palin making her mark in political and linguistic history. 

Up next:  Confirmation hearings for President Obama‘s Supreme Court nominee Sonia Sotomayor begin Monday.  And a new report has a lot to say about the kind of judge Sotomayor has been and probably will be. 

We will talk to the report‘s author and what it means for her confirmation next. 

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

HAMPTON PEARSON, CNBC CORRESPONDENT:  I‘m Hampton Pearson with your CNBC “Market Wrap.”

Stocks edging higher today, with investors moving out of health care and retail in favor of banking and commodities.  The Dow Jones industrials added four points.  The S&P gained three, and the Nasdaq is up five points. 

Futures spiked this morning on a much-better-than-expected jobs report, initial claims plunging by 52,000 last week, but enthusiasm was tempered by the number of continuing claims.  It surged to a new record high, 6.8 million. 

But the biggest drag on the Dow today coming from pharmaceuticals -

Merck down 3.8 percent on concerns about a new study of its cholesterol drug Zetia being put on hold. 

And Pfizer down 2.2 percent, after losing a patent battle with a Canadian drugmaker. 

And legendary investor Warren Buffett chimed in on the stimulus debate today, saying unemployment could reach 11 percent, and a second stimulus package may be needed. 

That‘s it from CNBC, first in business worldwide—now back to

HARDBALL. 

O‘DONNELL:  Welcome back to HARDBALL. 

Confirmation hearings for Sonia Sotomayor kick off Monday in the Senate Judiciary Committee.  And Republicans are making some noises about mounting resistance, even if they have no chance of stopping her from joining the Supreme Court. 

Here is Senate Republican Leader Mitch McConnell today. 

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER:  All of us are impressed by her remarkable life story.  It reaffirms, not only to Americans, but to people around the world, that ours is a country in which one‘s willingness to dream and to work hard remain the only requirements for success. 

And, yet, it‘s precisely the truth about America that makes it so important that our judges apply the law the same way to one individual or group as to every other.  This is why we have raised the questions we have, and this is why we will continue to raise them as the confirmation hearings for Judge Sotomayor proceed. 

(END VIDEO CLIP)

O‘DONNELL:  McConnell and other Republicans have questions about whether Sotomayor is what they call an activist judge. 

The Brennan Center for Justice at NYU Law School released a report today on Judge Sotomayor‘s record. 

We‘re joined now by the author of that report, attorney Monica Youn. 

Monica Youn, the justice—Brennan Center is named after Justice Brennan from the Supreme Court.  And you have done an analysis, as I understand it, based exclusively on her judicial appointments. 

You did not include in this analysis things like her public speeches or remarks made off the cuff in question-and-answer situations, but just her judicial opinions. 

MONICA YOUN, ATTORNEY, BRENNAN CENTER FOR JUSTICE AT NYU LAW

SCHOOL:  Exactly. 

We were not just looking at the opinions she authored, but at any case in which she was part of the panel or the en banc making the decision. 

O‘DONNELL:  En banc meaning, on the appeals court, they will have opinions that are written by three judges or larger groups of judges, depending on exactly where the case is, and its level of development in the appeals court.

Some of them are authored by Sonia Sotomayor.  Some of them are things where she‘s just saying, “I agree with Judge Katzmann, who wrote this opinion,” right? 

YOUN:  Yes. 

O‘DONNELL:  And...

YOUN:  And, in a lot of them, it‘s hard to tell who wrote the opinion, because the opinion is unsigned. 

O‘DONNELL:  And how does it line up?  Do you see her—does her name show up only on the side where Democratic appointees to that court are—are agreeing with themselves, or is she ever finding herself in agreement with Republican appointees to that court?

YOUN:  You know, what we found—and we looked at almost 1,200 cases.  We looked at every constitutional decision of the Second Circuit over the past 10 years that she has been sitting on the court.

And what we found was striking unanimity and striking bipartisan consensus.  We see Judge Sotomayor basically writing—joining unanimous decisions.  Her decisions are unanimous 94 percent of the time. 

O‘DONNELL:  OK.  Well, let‘s go back over that for a second. 

On a court that is composed of both Democrat and Republican appointees to that court...

YOUN:  Yes. 

O‘DONNELL:  ... all confirmed by the United States Senate, her opinions are unanimous what percent of the time? 

YOUN:  Ninety-eight—not just her opinions, her decisions in general.  When Judge Sotomayor is on a panel, we are seeing a 98 percent unanimity rate. 

Now, the Second Circuit, I should point out, is a circuit...

O‘DONNELL:  So if you pick one of these cases, and you‘re saying, hey, Sotomayor was really flaky on this decision, you‘re saying that about every other judge who joined that decision. 

YOUN:  Exactly. 

Now, I should point out that the Second Circuit has a reputation for being a court that really privileges consensus.  They are a court that‘s about evenly split between Democratic appointees and Republican appointees, and you see an overall 93 percent unanimity rate for the circuit, as opposed to a 94 percent rate for Judge Sotomayor. 

I think I may have misspoken earlier.  She‘s in the majority 98 percent of the time.  She‘s unanimous 94 percent of the time. 

O‘DONNELL:  Let‘s take a look at the basic conclusion of your report.  Here is what it says: “the conclusion is unmistakable, based on the data in Constitutional cases, Judge Sotomayor‘s record places her squarely in the mainstream of the Second Circuit.” 

What do you mean there by Constitutional cases? 

YOUN:  Well, we weren‘t, unfortunately, able to look at every decision the Second Circuit has made over the past ten years.  That would have been tens of thousands of cases, as opposed to the 1,200 that we were able to review in advance of the hearing. 

But we thought that we would focus on cases in which a Constitutional issue was raised, whether that be a First Amendment claim, a civil rights claim, criminal cases in which a due process, you know, violation is alleged, that sort of thing. 

O‘DONNELL:  And just so the audience understands, in the federal court system, there can be plenty of very trivial cases that can make it up to that level.  I mean, a postal worker who is accused of stealing stamps, on some procedural motion, can end up in one of these cases, and that‘s not the kind of thing that you‘re going to look at to try to evaluate someone‘s fitness for the United States Supreme Court. 

That‘s why you‘re zeroing in on the so-called Constitutional case. 

YOUN:  Yes, people can race Constitutional claims in less important cases, as well as more important cases.  But the reason we specifically wanted to focus on Constitutional cases is Constitutional cases are the cases in which our federal judges have the most power.  They can actually strike down the action or, you know, a statute passed by a legislature, or an action of another governmental official, and say that that action was unconstitutional; you‘re not allowed to do it again. 

O‘DONNELL:  Let me go to one thing, Al Franken has just joined the Judiciary Committee.  The first time we‘re going to see him as a senator will be when he‘s participating in these hearings starting Monday.  He is not a lawyer.  He‘s one of now three people on the Judiciary Committee who never went to law school.  How do you feel, as a law school graduate, a lawyer, a judicial expert doing this kind of work, how do you feel about entrusting the evaluation of Supreme Court nominees to people who don‘t have professional legal training? 

YOUN:  You know, one thing I think about that is that, you know, the law applies to everyone, to lawyers and non-lawyers alike.  And too often judges get caught up in this concept of law, and they‘re not thinking about the way in which a law plays out in the real world.  They‘re not thinking that there are people who have to live by this.  There are people whose decisions, in terms of certainty, in terms of whether their action is going to be considered illegal or not, need to know how to behave.  And I think that it‘s valuable to have voices of people on the committee who are not just people who are legally trained. 

O‘DONNELL:  All right.  We‘re going to leave it there for today. 

Thank you, Monica Youn. 

Up next, Senator Roland Burris of Illinois, who took Barack Obama‘s seat in the United States Senate, says he will not seek election to that seat next year.  What does that mean for the Democrats?  That‘s next in the politics fix.  This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

O‘DONNELL:  We‘re back, and it‘s time for the politics fix, with Pulitzer Prize winner Eugene Robinson of the “Washington Post,” who is an MSNBC political analyst, and “Newsweek‘s” Michael Isikoff, who is an MSNBC contributor. 

Eugene, Roland Burris has made the decision he‘s not going to try to hang onto that seat that Rod Blagojevich gave him when maybe no one else would take it.  He seems to have recently survived the Illinois legislature‘s investigation of sorts into whether there was any kind of buying and paying for that and any kind of promises about fund-raising.  How do you read this at this point, Eugene?  It‘s a 71-year-old guy who certainly looked like he, when he arrived there, was going to have some fun and filling out this decade of his life there looked like something he wanted to do.  But today he‘s given up. 

EUGENE ROBINSON, “THE WASHINGTON POST”:  Yes, Roland, we hardly knew you.  This is not—you know, this was never going to work out very well for Roland Burris given the way he arrived in the Senate.  And I suspect some friends—I hope some friends had the obvious foresight to tell him that.  You know, when you‘re appointed by Rod Blagojevich when nobody else will take the job, you know, you‘re not going to have a very smooth ride, and apparently he was—if he had thought about trying to go for a term in his own right, he wasn‘t able to raise any money. 

You know, this is a huge mess for the Democratic party basically.  This should have been a fairly easy transaction.  Obama gets elected, Democratic governor names a Democratic replacement who can hold the seat when it comes up in 2010.  That‘s a fairly elementary thing to do in politics.  Yet, they managed to bungle this one quite badly. 

O‘DONNELL:  Michael, Blagojevich‘s appointment in Burris in the first place was a real defiance of Patrick Fitzgerald, the prosecutor whose work you know well, who was prosecuting Blagojevich on his conduct in office thee.  And seeing Roland Burris kind of drop out at this point, do you sense a possibility here of another shoe dropping in this from the Fitzgerald side of this story?  Burris may have survived his question and answer period with the Illinois legislature, but you know the way Patrick Fitzgerald just stays at these things. 

MICHAEL ISIKOFF, “NEWSWEEK”:  Yes, well, look, it‘s hard to know.  There‘s been no hint from Fitzgerald‘s office in any of the filings that point to Burris.  But it is worth mentioning that that investigation, the one that led to Blagojevich‘s indictment and upcoming trial, is ongoing.  Just yesterday, Blagojevich‘s former chief of staff, John Harris, pled guilty and became a cooperating witness with the feds. 

There are still shoes to drop in that overall investigation.  And whether or not they were going to point to criminal charges against Burris, there‘s no question that were Burris to try to run for reelection, the whole Blagojevich investigation and upcoming trial and all its many tentacles were going to continue to be in the Illinois press and would continue to dog him throughout any campaign he tried to run. 

I think he was a doomed candidacy from the get go.  The only surprise is that it‘s taken him this long to realize that and make the announcement that he‘s not going to run. 

O‘DONNELL:  Mike, you studied Fitzgerald closely in the Scooter Libby case, and you got a feel for the way the guy work.  We‘re never going to know this.  He‘s never going to say this.  But don‘t you have to think today Patrick Fitzgerald is glad to know that the guy Rod Blagojevich appointed is not going to be a senator as of two years from now? 

ISIKOFF:  I‘m not sure he thinks much about things like that.  I think, knowing Fitzgerald, he‘s a pretty focused guy.  He‘s probably singularly focussed right now on making sure his—that Blagojevich gets convicted in the upcoming trial, flipping a few more witnesses. 

There are a lot of, you know, shoes to drop in that investigation, things that have yet to come out.  I would remind you that, you know, one key witness against Blagojevich is the co-conspirator named Tony Rezco, close political associate of Barack Obama‘s.  We have yet to learn exactly what Tony Rezko has told the feds.  There‘s going to be a lot of continued interest in that investigation. 

O‘DONNELL:  And we‘re going to stay on it.  We‘ll be back with Eugene Robinson and Michael Isikoff for more of the politics fix.  You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

O‘DONNELL:  We‘re back with the “Washington Post‘s” Eugene Robinson and “Newsweek‘s” Michael Isikoff for more of the politics fix.  Michael Isikoff, the CIA versus Congress broke out again as an argument about who‘s telling who the truth.  There‘s a long tradition here.  Democrats and Republicans in the House and the Senate accusing the CIA at different times of lying to them.  Barry Goldwater, one of the hero Republicans of all time, accused the CIA of lying to him about the mining of the harbors in Nicaragua.  What do you make of this latest round of this? 

ISIKOFF:  Well, there‘s a couple of interesting developments.  First of all, that letter that was sent by the House Democrats was pretty startling in its language.  It said that the CIA had concealed significant actions from Congress and misled members going back from 2001 until last month. 

Now, there‘s undoubtedly a political context to this.  Speaker Pelosi was under fire from the Republicans when she said the CIA had misled her a couple of months ago.  Republicans said they were shocked that the speaker would be tarnishing the representations of hard-working professionals at the agency.  And so I think the Democrats saw the concession by Leon Panetta when he came forward with this as the smoking gun proving that Pelosi was in the clear. 

Whether it really adds up to that, it‘s hard to say at this point.  Although we did report this afternoon, my colleague Mark Hozenball (ph) and I on Newsweek.com, that Panetta has ordered an internal inquiry into why this information about this unspecified covert program was not provided to Congress earlier.  That‘s an implicit concession that this is information that the Congress should have known about. 

O‘DONNELL:  Eugene Robinson, the Democrats are insisting—we had the chairman of the committee on earlier in the show—insisting that they‘re not doing this, not talking about this to try to help Nancy Pelosi, but clearly they are.  Is it going to work?  Is it going to help Nancy Pelosi on her controversy with the CIA? 

ROBINSON:  I think it may help her somewhat.  If you just—if it were left here where it is now, she would be able to point and say, you know, see?  I told you.  This is the sort of thing they do. 

But as you mentioned, you know, this is not the first time that the Hill or that people on the Hill have pointed to the CIA and said you lied to us; you didn‘t tell us something you should have told us.  What I‘m curious about, and I think everybody is OK, so what was it?  Given what we know about things that were done during the Bush-Cheney years, especially under the aegis of the CIA, it would be fascinating to learn what this is about.

O‘DONNELL:  Eugene, we‘re going to have to leave it there for today.  Michael Isikoff is going to have to find out what it was.  Thank you, Eugene Robinson and Michael Isikoff.  Join us again tomorrow at 5:00 and 7:00 Eastern for more HARDBALL.  Right now it‘s time for “THE ED SHOW” with Ed Schultz.

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

END   

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