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updated 12/20/2011 10:09:10 AM ET 2011-12-20T15:09:10

MICHAEL SMERCONISH, GUEST HOST: Newt takes a tumble. Let`s play some HARDBALL. Good evening. I`m Michael Smerconish in New York, filling in for Chris Matthews, who`s taking a short break after his tour for his book, "Jack Kennedy: Elusive Hero." He`ll be back on Thursday. Leading off tonight: Down goes Newt. Roughly one week ago, Newt Gingrich looked like he was on his way to becoming the Iowa nominee. But two Iowa polls out today show Ron Paul -- yes, Ron Paul, leading, with Gingrich crashing. For that you can thank a week`s worth of negative advertising aimed squarely at Newt. And it won`t stop. This week the Romney campaign and PAC are expected to vastly outspend Gingrich in Iowa. Right now, Gingrich is paying the price for his disorganized campaign. Plus, Gingrich has a creative idea for what to do if a judge makes a decision that you don`t like. Ignore it, and if necessary, arrest the judge. It may not be constitutional, but it`s excellent politics on the right. Also, are we finally seeing the Republicans splintering into Tea Party and non-Tea Party factions? Hours after Senate Republicans agreed to a two-month extension of the payroll tax cut, House Republicans said, No way. Now even some in the GOP, like Senator Scott Brown, have had it with the Tea Partiers. And we`re learning more about what people at Penn State knew, when they knew it, and how little was done about evidence of serial sexual abuse of children. Finally, last week Michele Bachmann felt insulted by the way that Newt Gingrich treated her at the Fox debate. Let`s see how she feels about Ron Paul now that he`s said she hates Muslims. That`s in the "Sideshow." We start with the apparent collapse of Newt Gingrich in Iowa. Howard Fineman is an MSNBC political analyst and the Huffington Post Media Group editorial director. David Yepsen is a political columnist and the director of the Paul Simon Public Policy Institute at Southern Illinois University. Howard, is this the continuation of what we`ve discussed previously of how this wave of support moved from Bachmann to Perry to Cain to Newt, and it just seems like continual discontent, or is this different? HOWARD FINEMAN, HUFFINGTON POST MEDIA GROUP, MSNBC POLITICAL ANALYST: Well, I think it`s different because it`s more intense. I think Newt Gingrich being the famous guy that he is, the controversial guy that he is, excited great acclaim when he managed to survive the beginning of his campaign and became sort of the last man standing. But now he`s really in it. Talking to our people out in Iowa -- and I`m talking about John Ward, our lead reporter for HuffPost, and Todd Richardson, who`s the regional editor for our Patch local sites -- they`re telling me, first of all, that Newt is announcing this afternoon that he`s going to go on a 44-city and town bus tour for the last several days of the campaign. And I`m sure Dave Yepsen can affirm that when you head on a bus tour for 44 towns, that`s not necessarily a strong sign. Newt Gingrich has been pummeled, absolutely pummeled by at least $3 million or $4 million worth of negative advertising from independent PACs, from Ron Paul, and so forth. And what went up in Iowa seems to be really rather dramatically going down big-time, in a hurry. SMERCONISH: Well, David, let`s look at the numbers that Howard makes reference to. Newt Gingrich`s support in Iowa -- and you`re close to this -- is on a steep downward slide. This is the latest PPP poll and it`s got Ron Paul at 23 percent, Mitt Romney 20 percent, Newt at 14 percent. But two weeks ago, it was a different story. At that time, this poll had Ron Paul at 18 percent, Mitt Romney at 16, and Newt Gingrich leading at 27 percent. Meanwhile, the RealClearPolitics trend lines in Iowa from November 1st until today tell the story there. You`ve got Gingrich making a steady and steep climb until about December 11, and then his support drops off a cliff. At the start of November, Romney was in his low 20 percent comfort zone, and then he began a slide that didn`t turn around until early December. Now he`s back in the 20 percent range. And Ron Paul has had a fairly steady rise in the polls to the point where he`s now the front- runner. David Yepsen, diagnose what`s going on here for Newt Gingrich. DAVID YEPSEN, SO. ILL. UNIV., POLITICAL COLUMNIST: Well, there`s an ebb and flow to this for all the candidates. There`s a lot of uncertainty in this electorate. Even those people who have made a decision, if you push them, they`ll tell you, well, they might be persuaded to change their minds. In the case of Newt Gingrich, I think Howard`s right. I think candidate Newt was doing quite well, and he was hit with a tsunami of attack ads and of criticism, and so caucus-goers took a second look at him. And you know, I think this thing with the judges that you mention strikes a lot of caucus-goers as maybe just a little bit weird. And so I think that some of the social conservatives are having some trouble with Newt Gingrich. So it fits a pattern of what we`ve seen throughout this entire campaign of a candidate rises, gets hit by something, has a gaffe, and so Newt Gingrich has fallen victim to that. SMERCONISH: But it`s almost... YEPSEN: And you`re right, he doesn`t have much on the ground... SMERCONISH: David, it`s almost like a game of musical chairs. And now with 15 days to go, as they continue to remove the chairs, there aren`t too many places left for those folks to go who are dissatisfied and have moved from candidate to candidate to candidate. I guess my question is, who benefits in this environment? YEPSEN: Right now, I think Mitt Romney does because as sort of the moderate candidate in the race, he`s the odd man out. We saw this pattern happen in Iowa in 1980 when George Herbert Walker Bush won. And the conservative vote was all chopped up among several other candidates, and he was able to win with a plurality. I think Romney is hoping to do that same sort of thing with the conservative vote all chopped up. We haven`t mentioned the social conservatives, who are having a great deal of difficulty agreeing on who they`re for. And also, one thing that does get overlooked. Not everybody`s a social conservative in the Republican Party. And even among social conservatives, issues like jobs and the economy are what drive -- is what`s driving this. But every Republican you talk to say they like certain things about some candidates, they don`t like other things about them. And So they`re having a real difficult time making up their mind. SMERCONISH: Howard Fineman, you made reference to the ad spending. Let`s take a look at that spending in Iowa. In the first national election since the Citizens United ruling allowed unlimited campaign spending by PACs, it`s clear to see the impact. In just the coming week in Iowa, here`s the breakdown on TV ad spending. "Restore Our Future," that`s the pro-Romney PAC, is going to spend $713,000 in Iowa, far more than the Romney, quote, "campaign" will be spending, $258,000. And the Newt Gingrich campaign is going to spend $222,000, combing PAC money and campaign money -- Mitt Romney outspending Newt Gingrich, by our count, 4 to 1. FINEMAN: Well, there are a couple things going on here. And David, when he was covering for "The Des Moines Register," knows exactly how this works. In a multi-candidate field with a long race ahead, there are complicated strategies in Iowa. For Mitt Romney -- it`s a bigger priority for Mitt Romney that Newt Gingrich lose than that Mitt Romney wins. If Mitt Romney wins, it`s gravy. But if Newt Gingrich loses, having become the front-runner nationally, that is a tremendous victory for Romney, even if it`s Ron Paul who ends up being the ultimate winner. On the social issue conservatives, a couple things. The judge issue - - from my understanding, what our reporters are saying, the judge issue -- you know, arrest the judges, all the things Newt`s been saying -- that plays with some social conservatives. But that is a very disruptive and sort of overly dramatic way to appeal to social conservatives. Newt Gingrich has to do that because he has other problems with social conservatives, given his personal biography, et cetera. And so he`s using an issue that`s popular in Iowa with the far right, namely, dislike of judges. But it may turn off the moderates, who do also participate, as David says, in the Republican caucuses on caucus night. SMERCONISH: David, to what extent do endorsements hold the key to why all of a sudden now Newt is tanking and Mitt Romney seems to be strengthened? YEPSEN: You know, I don`t think endorsements mean very much anymore. I think newspaper endorsements are a bit of a throwback to the old days. Certainly, "The Register`s" endorsement -- you know, that`s a paper with an editorial policy on the left-hand side of the spectrum. It just doesn`t have credibility with Republicans -- it does on the -- I`m sorry, on the right-hand side of the spectrum. "The Register" has credibility on the left-hand side of the spectrum in a Democratic primary fight. But you know, and even -- the only endorsements I think that count in a caucus fight are ones that either bring money or organizational support, shoe leather. So for example, in a Republican caucus fight, you want to get the support of social conservatives because a lot of those pastors have networks of members that they work. And in a Democratic fight, you want to get support from organized labor. But endorsements of individual politicians or newspapers, I don`t think they make much difference. SMERCONISH: Howard, is there any prospect that Ron Paul wins in Iowa, builds on that and puts himself on a path to capturing to GOP nomination? FINEMAN: Well, we keep saying no. I suppose it`s not impossible. I covered Ron Paul`s campaign pretty closely in New Hampshire last time around, four years ago. I thought he would do better in New Hampshire than he ended up doing in that sort of libertarian-oriented state. But if he wins Iowa and gets the validation there, then he has to be considered a chief contender in New Hampshire. And once that happens, who the heck knows? Everybody seems to think that Ron Paul is somehow too out there, and surely enough, some of the things that he said about Iran, and you know, Iran being justified in getting a nuclear weapon, and you know, a lot of the other things that Ron Paul has said would seem to put him out of the mainstream of American politics. But we`re at such a weird point in the Republican Party`s history, a kind of collective nervous breakdown here, where they`re kind of at the end of an era. They don`t know quite what`s next. The Reagan era is over. George Bush and the Bush father and son kind of followed on Ronald Reagan. Now the Republican Party is split in a million ways. They don`t know where to go. Ron Paul represents a consistent, if minority, part of the Republican Party, which is the strict libertarian view -- anti-government, anti- defense spending, no foreign aid, no foreign entanglements, no Federal Reserve, you name it. And for 15 to 20 percent of the hard-core Republican electorate, that`s where they`re at. SMERCONISH: It just seems like the numbers outside of Iowa and New Hampshire have been consistent for him and not showing any surges. I`m going to show you both something. Mitt Romney used the reliable criticism against Gingrich again. It was on Sunday. Let`s listen. (BEGIN VIDEO CLIP) MITT ROMNEY (R-MA), FMR. GOV., PRESIDENTIAL CANDIDATE: Republicans came together and proposed a program to make sure that Medicare is sustainable. Paul Ryan was the author of the plan, but almost every single Republican in Congress voted for it. And the world watched to the see, OK, are we going to have progress? And the speaker said, This is right-wing social engineering. I mean, talk about unreliable! (END VIDEO CLIP) SMERCONISH: David Yepsen, is it that voters in your state of Iowa are rallying to Mitt Romney, or that they`re abandoning Newt Gingrich? Which is it? YEPSEN: I think it`s -- I think they`re abandoning Newt Gingrich. I think they -- I think they -- you know, a lot of Republicans, they like the way Newt Gingrich bashes the Democrats. He`s articulate. You know, it`s kind of red meat. But when you start thinking about making him your party`s nominee, there`s a little buyer`s remorse that sets in here. That pattern has happened several times already in this race, and Romney`s quite content to keep fueling it because he`ll be the last person standing, could win or do well with a plurality. And I think Howard`s right. I mean, the Ron Paul factor is very real. He certainly could win. You can`t look at that polling and say he`s out of the picture. He`s doing what a lot of candidates have traditionally done, try to do well in Iowa and use that media attention to break out of the pack and try to generate some support later down the race. He`s got a lot of young people who are showing up at his events, and that`s a wild card. We haven`t seen a lot of those people (INAUDIBLE) SMERCONISH: Howard, real quick, final comment. Go ahead. FINEMAN: I was just going to say, I doubt that Ron Paul could win. It would be a little bit like Pat Buchanan -- I mean, Pat Robertson winning the Republican caucuses. But I`ll say this also. Newt Gingrich has done Mitt Romney a favor because Newt has made Mitt come out of his shell, start doing interviews, start being more user-friendly. The thing that`s made Mitt Romney look halfway decent or at least acceptable is the presence -- the gigantic presence of Newt Gingrich. SMERCONISH: Amazing, by the way, that it took Newt to bring him out of that shell. FINEMAN: Exactly. Exactly. SMERCONISH: Thank you, Howard Fineman and David Yepsen. Appreciate your being here. Coming up: We may be witnessing the Republican Party splintering into Tea Party and non-Tea Party lines. After the Senate agreed to extend the payroll tax cut, the Tea Partiers in the House ditched that deal. That`s ahead. You`re watching HARDBALL, only on MSNBC. (COMMERCIAL BREAK) SMERCONISH: For years, Iowa has been criticized as having an out- sized influence in presidential politics. Critics say the state is too small, too rural, its population too white to lead the rest of the country in picking a presidential nominee. "The New York Times" points out another fact about Iowa that puts it out of the mainstream, at least this year. It`s too economically healthy. The unemployment rate in Iowa is about 6 percent. That`s nearly 3 points lower than the national average. We`ll be right back. (COMMERCIAL BREAK) SMERCONISH: Welcome back to HARDBALL. It looked like Republicans and Democrats reached an agreement over the weekend that would extend the payroll tax cut beyond its year-end expiration. The Senate voted overwhelmingly Saturday, 89 to 10, to back the compromise. For a minute, it looked like a bipartisan Christmas gift for American workers. Well, not so fast. Speaker of the House John Boehner appears to be facing a revolt from the right. That`s the right flank of his party. And when the House votes on the deal later today, it`s expected to reject what the Senate passed. As a result, we`ve seen Republicans in the House and Senate trading blame all day. And everyone is wondering, what exactly happened? How did Senate Majority Leader Mitch McConnell and Speaker John Boehner wind up on such different wavelengths? The most important question, though, is whether political brinksmanship in Washington will mean millions of Americans are in for a tax hike next year. We`re joined by Congressman Jack Kingston, a Republican of Georgia. Congressman, what went on here? Were McConnell and Boehner not on the same page? REP. JACK KINGSTON (R), GEORGIA: Well, apparently, they weren`t. We thought that by passing an unrelated appropriations bill that we had last week prepared to do, that we had strengthened Senator McConnell`s hand in terms of negotiating the payroll tax deduction. That wasn`t the case. Eighty-nine senators elected to do a two-month. They wanted to punt rather than finish up the program for an entire year, which, by the way, that is the president`s position, Let`s do it for a year. That`s what the president said repeatedly throughout the fall, as did most of the Democrat leadership in the Senate. And so when 89 senators voted to just take the two-month, Let`s get out of town and live to fight another day route, we were pretty disappointed in it because we believed the American workers deserve a one- year solution to this. This is too important to the economy and to the American families. SMERCONISH: But here`s the part -- here`s the part that confuses me. Initially, when the debate first began, the position of the Republicans seemed to be that there should not be an extension of the payroll tax cut at all. And now, somehow, we`ve moved to a position where the Republicans are saying, Not only do we want it extended, it`s not being extended long enough in the scenario that`s been proposed. KINGSTON: Well, I think what we wanted to do, Michael -- we were working with the White House, and again, the president laid down the gauntlet. He said we need to have a one-year solution to this. And through the negotiations of the fall, we took him for the word -- took him for his word. We put in other issues, some of the reforms on unemployment insurance. We put in the Medicare so-called "doc fix," and we put in the Keystone pipeline, and so one of the EPA rules on boiler regulation that we thought was onerous, we had it removed. Now, we are willing to compromise on those things. But we felt like the line in the sand was a one-year fix. And you know, I guess there has been an evolution in terms of where we are and where the Democrats are, and it might seem like we`ve reversed positions. I know a lot of the House Democrats last week who voted against the one-year bill were saying that they felt it would be better than a two-month solution. But now they`re going to have to vote for the two-month solution if they feel like that`s the president and their party`s position. But you know, this isn`t a huge deal, Michael. I mean, this is -- I`ve been in Congress for 19 years. We go to conference committees routinely. We`ve done that for over 200 years when the Senate and the House disagree. We`ve got 11 days. I`ve seen bigger issues resolved in a lot shorter periods of time. And all we`re saying is, you know what, we don`t like what you did on your way out of town. Let`s go to a conference committee, iron out our differences, and come up with something better for the American worker and the American job creators. SMERCONISH: Are you prepared to let it expire? KINGSTON: No, I don`t think so, and nor do we need to let it expire. Again, 11 days is plenty of time. When I was in the private sector, I worked Christmas Eve routinely. Congress can do that. We don`t have some special buy that we have got to get out of town by the 20th of December. SMERCONISH: Congressman, the criticism is not all coming from members of the Democratic Party. Here`s what your Republican colleague in the Senate, Senator Scott Brown, said just today -- quote -- "The House Republicans` plan to scuttle the deal to help middle-class families is irresponsible and wrong. The refusal to compromise now threatens to increase taxes on hardworking Americans and stop unemployment benefits for those out of work. During this time of divided government, both parties need to be reasonable and come to the negotiating table in good faith. We cannot allow rigid partisan ideology and unwillingness to compromise stand in the way of working together." What`s your response to your Republican colleague? KINGSTON: Well, what I would say, picking out his own words, he said we need to negotiate, we need to come to the table to compromise. That`s the only thing we`re asking. We`re saying, you guys want a two-month deal? That`s not in the interest of the American recovery. People need to know that this tax break and these Medicare reimbursements are going to be there for more than two months. And what we`re saying to the Senate is, we do not like what you did, but we certainly are willing to negotiate. It does not have to be our way or the highway. That`s not what we`re saying at all. So, taking Senator Brown`s words, as we did with President Obama, let`s negotiate. And we`re willing to do that. And we`re willing to do that tonight, tomorrow, on up to Christmas and after Christmas, and we`re going to get this thing done. I want it done. John Boehner wants it done. The House Republicans want it done. But we do not think that the American workers should accept a two-month extension on something so key to this. You know, Gene Sperling, who is an economic adviser to the president, said November 30 this could create 600,000 to one million jobs. That is within our grasp. So let`s do it. You can`t create those kind of jobs with the two-month extension. We need to have a one-year agreement. SMERCONISH: Congressman, we will see what happens next. Thank you for joining us. KINGSTON: Thanks, Michael. SMERCONISH: Ron Paul vs. Michele Bachmann, it`s a feisty little fight on the GOP`s undercard, and now it`s in the "Sideshow." You`re watching HARDBALL, only on MSNBC. (COMMERCIAL BREAK) SMERCONISH: Back to HARDBALL. And now for the "Sideshow." First up, picking a fight? Ron Paul made his way to the late-night scene on Friday, appearing on "The Tonight Show." But don`t think for a second that he avoided the chance to make some digs at his opponents, one in particular. Let`s watch. (BEGIN VIDEO CLIP, "THE TONIGHT SHOW WITH JAY LENO") JAY LENO, HOST, "THE TONIGHT SHOW WITH JAY LENO": Mitt Romney. REP. RON PAUL (R-TX), PRESIDENTIAL CANDIDATE: He used to be governor of Massachusetts. Maybe that`s where he should stay at. (LAUGHTER) LENO: Newt Gingrich? PAUL: He maybe should run for speaker of the House again. (LAUGHTER) LENO: Michele Bachmann? PAUL: She doesn`t like Muslims. She hates Muslims. LENO: Wow. Really? PAUL: Yes. She hates -- she wants to go get them. (END VIDEO CLIP) SMERCONISH: Well, there`s the kicker. And if Michele Bachmann wasn`t at home on Friday night, she apparently caught wind of Paul`s comment later on, and she`s not laughing. (BEGIN VIDEO CLIP) REP. MICHELE BACHMANN (R-MN), PRESIDENTIAL CANDIDATE: It`s an outrageous statement that Ron Paul made, and I call on him to apologize. It`s important to note that there`s -- there really are haters, and the haters are the president of Iran and the mullahs, who have already stated their desire is to be -- they are genocidal maniacs. They want to take Israel off the face of the map. That`s haters. That`s a hater. I`m not a hater. (END VIDEO CLIP) SMERCONISH: Well, Bachmann may be demanding an apology, but Ron Paul isn`t exactly one to cave under pressure. But, speaking of that, as Newt Gingrich becomes the latest candidate to start slipping in the polls, a lot of people are starting to ask a question that up until now has seemed like a real pipe dream. Could Ron Paul really snag the nomination? According to a RealClearPolitics editorial, not if the Republican establishment has anything to say about it. What awaits the Paul campaign if the candidate does manage a win in Iowa and New Hampshire? Quote: "If those two unexpected events do occur, then all hell will rain down upon the Paulistas. The GOP establishment will throw everything, including the kitchen sink, the garage door opener, and two dozen pair of oversized baboon dentures, at Paul to keep him from becoming the nominee. But I`m getting ahead of myself." It`s still a big unknown who will win in Iowa and New Hampshire, but Ron Paul is no stranger to getting pummeled by the Republican establishment. And, finally, date night for the first lady? You will be surprised to find out I`m not talking about with the president. Late last week, first lady Michelle Obama was donating gifts at a military base in Maryland when one of the cadets mustered up the courage to ask that she join him at next year`s Marine Corps Ball as his date. Apparently, the first lady said that she`d love to go, but needed to speak with the president first. And the will she or won`t she speculation even made its way into Friday`s White House press briefing. (BEGIN VIDEO CLIP) QUESTION: Let me follow up on the first lady. She had a Marine Corps Toys for Tots event today, and a 20-year-old asked her to be his date at the Marine Corps Ball next year. JAY CARNEY, WHITE HOUSE PRESS SECRETARY: Is that right? QUESTION: And she -- he claims that she said she would love to do it, but had to check with her husband. Has the president... (LAUGHTER) CARNEY: If the president`s watching this, this might be the first he`s heard of it. QUESTION: Is there anything new at this point? CARNEY: I don`t know. But I think that`s -- I think it`s -- you know, the first lady`s commitment, to military families is very strong, indeed. So I`m sure she was flattered by the invitation. (END VIDEO CLIP) SMERCONISH: I guess the jury`s still out. My guess, by the way, is it will be a yea. Up next, Newt Gingrich has a novel plan for what to do if a judge makes a decision he doesn`t like. First, ignore it, and then, if necessary, arrest the judge. That`s ahead. You`re watching HARDBALL, only on MSNBC. (COMMERCIAL BREAK) BRIAN SULLIVAN, CNBC CORRESPONDENT: I`m Brian Sullivan with your CNBC "Market Wrap." And, apparently, the big guy is stuck in a chimney because investors all but giving up hope of a Santa Claus rally. The Dow fell 100 points, the S&P down 14, the Nasdaq off 32. It was banks that led the way lower, and it was on word the Federal Reserve had failed to convince regulators in Switzerland to relax capital requirements for the next rounds of reform, if you followed that. It has to do BASEL III. Anyway, retailers struggled on word that huge Black Friday discounts and demand are resulting in a surprisingly large slump in pre-holiday sales. But if you`re an investor in Winn-Dixie supermarkets, congrats. That stock soared 70 percent after Bi-Lo agreed to buy it for $560 million in cash. Airline stocks slipped, despite a midday dip in oil prices, maybe a bit of profit-taking after some made some solid gains last week. And some big breaking news after the bell. AT&T giving up on its bid to buy T- Mobile. It`s accusing government regulators that moved to block the merger are refusing to accept the speed at which the industry is growing. That is it from CNBC, first in business worldwide -- now back to HARDBALL. SMERCONISH: Welcome back to HARDBALL. Newt Gingrich returned to an old favorite on Sunday. He went after activist judges. And he said, in a Gingrich administration, he`d arrest those he says are too radical. Listen. (BEGIN VIDEO CLIP) BOB SCHIEFFER, HOST, "FACE THE NATION": One of the things you say is that if you don`t like what a court has done, that Congress should subpoena the judge and bring him before Congress and hold a congressional hearing. Some people say that`s unconstitutional, but I will let that go for a minute. I just want to ask you, from a practical standpoint, how would you enforce that? Would you send the Capitol Police down to arrest him? NEWT GINGRICH (R), PRESIDENTIAL CANDIDATE: Sure, if you had to. (CROSSTALK) GINGRICH: Or you would instruct the Justice Department to send a U.S. Marshal. (END VIDEO CLIP) SMERCONISH: This kind of tough talk red meat for the base, but can it stop Gingrich`s drop in the polls? And what is -- is it constitutional, that which he says? Jonathan Turley knows. He`s a professor at George Washington Law School and a constitutional law expert. J.C. Watts is a former U.S. congressman who today endorsed Newt Gingrich for president. Congressman, be careful what you wish you, because when your party is office, do you really want such a subpoena being issued by the president? J.C. WATTS, FORMER U.S. CONGRESSMAN: Well, I think, Michael, what Newt was saying -- the basis of what he was saying was is, how do we stop activist judges? How do we help judges to understand that you have got a legislative branch and executive branch? And he said, if a radical judge or if a judge makes what is seen to be a radical case, that you bring them before Congress and ask them to explain it. So I think -- I think there`s a -- you know, a thought process there - - a thought process out there that says that should be the case. We should have them explain, why do you think -- in this case, what he was talking about, "under God" or God being removed from the pledge, or a judge saying that you will put a superintendent in jail if he hears the word benediction or invocation, those type of things. So, that is somewhat extreme. SMERCONISH: But can you imagine -- but, Congressman, can you imagine if President Obama were to issue a subpoena and say, I would like to have Scalia, Roberts, and Thomas show up here at 1600 Pennsylvania Avenue and explain to me their rationale in how they vote perhaps next year on the health care bill? There would be a hue and cry, and appropriately so. WATTS: Well, I think judges -- I think judges have an opportunity -- or they do take opportunities across the country to go into different forums to talk about different issues. I have seen on C-SPAN and other forums where judges, Supreme Court judges, appellate court judges, district judges, I have seen them go into different venues and talk about, you know, ideology or talk about the law, the Constitution. And I don`t think there`s anything wrong with having a judge come before members of Congress to give their thoughts. They have done that on many occasions. SMERCONISH: Professor Turley, in a blog post today, you write -- quote -- "It is the very definition of demagoguing to dangle out the image of judges being clapped in irons to satisfy citizens angry over decisions by judges. Article III is designed to guarantee independence from people like Gingrich, so that judges can rule in favor of the Constitution, and, yes, at times, take positions disliked by the majority." I think you went on to say, other than that, it`s fine with you. (LAUGHTER) SMERCONISH: I`m joking. Respond, if you would, to Congressman Watts. JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY, GEORGE WASHINGTON UNIVERSITY: Well, there`s a great deal wrong with this. It`s perfectly Robespierrean. You know, this is part of the danger that lies in any free nation, is that you can cause self-inflicted wounds. You know, John Adams warned that a democracy often ends in wastes and exhausts and murders itself. What he was referring to is that, in a pure democracy, citizens can do great harm to themselves in the passion of the moment. What Gingrich is describing here is truly horrific. I understand that there are red meat speeches during a campaign. This isn`t a red meat speech. This is something more closer to cannibalism, one branch devouring the other. And he is threatening the very thing that gave stability to our system. If you look back in our history, the rock that we have based our system on has been an independent judiciary. It`s what George Washington called the strongest cement of good government. He was referring to that system of law and that court system. And so... WATTS: And I... (CROSSTALK) SMERCONISH: Well, is history -- is history on Newt Gingrich`s side? Because he injects the reference to President Jefferson and talks about how three circuits were abolished under his watch. TURLEY: Yes, he`s wrong. I mean, the -- I got to tell you, I don`t know which concerns me more, his rather misinformation about the law or his misinformation about history. The historical examples he gave are simply wrong. I mean, he refers to -- for example, to Lincoln... (CROSSTALK) SMERCONISH: Well, I`m going to show it to you. May I interrupt and show it to everybody? TURLEY: Yes. SMERCONISH: Because he defended his position by invoking Abraham Lincoln, as you say. Let`s all watch. (BEGIN VIDEO CLIP, "FACE THE NATION") GINGRICH: Are judges above the rest of the constitution, or are judges one of the three co-equal branches? SCHIEFFER: But isn`t the other side of that, are the rest of us above the Constitution in obeying the law? GINGRICH: No. SCHIEFFER: Don`t, at some point, you have to say this is a nation of laws and we all have to... (CROSSTALK) GINGRICH: We do. But I will go back to Lincoln, who people generally think respected the law. Lincoln explicitly instructed his administration to not enforce Dred Scott. And he said, flatly, it`s the law of the case, not the law of the land. And it`s in his first inaugural. (END VIDEO CLIP) SMERCONISH: Professor Turley, is that true? TURLEY: No, that is absolutely not true. Dred Scott -- the thing that undid Dred Scott was the 14th Amendment. The Emancipation Proclamation did not conflict with Dred Scott, unfortunately, what -- because Dred Scott said you could not give citizenship to African-Americans. The Emancipation Proclamation did not give citizenship. It actually was in compliance with the rather mutated view of Dred Scott. So, that`s simply not true. Ultimately, the 14th Amendment got rid of Dred Scott. So the -- the history here is pretty shaky, but the message is really scary, because what he`s suggesting is that a president can simply ignore the court and become a government unto himself. SMERCONISH: Congressman Watts, go ahead and respond. And along the way, please speak to the issue of whether this is violative of a separation of power, this notion that all of a sudden an executive branch or a legislative branch would be able to call members of the judiciary on the carpet. WATTS: Well, Michael, what the speaker was -- the essence of what the speaker was saying or trying to say, and I`ve heard him talk about this before, what he was saying was is that, you know, an activist judge, basically, it is the responsibility of the judge to interpret the law, not to make the law. That`s the legislative branch`s responsibility to create laws. And the speaker went on to say, in his interview with Bob Schieffer, he said, you know, if the judges -- if judges render a decision that Congress and the president could overrule that decision, that they did have a say, that they did not -- that they were not necessarily final word, because the president and the Congress could overrule or could create a law saying we disagree with that. So, I think he was the essence of what he was talking about was trying to say, how do we -- do we have any say over a judge making a ruling, saying we should take "Under God" out of the pledge, as they said in the Ninth Circuit. The speaker was saying, implying that, yes, we do have some say in that, and some authority to say, you are not the final word, through the Congress and through the administrative branches of government. SMERCONISH: Final question, if I may, for you, Congressman Watts. I know that you came out today for House Speaker Newt Gingrich. Why have more members of that class of `94 not done likewise? WATTS: Well, for whatever reason. I don`t need anybody to, you know, hold my hand and tell me who I should support. You know, I think what we`re seeing is, is that the establishment and the Republican Party I think is trying to lead everybody to Mitt Romney. Republicans -- you know, we don`t fall in love, we fall in line. And I -- you know, I think Newt Gingrich, I know Newt. I don`t think he`s a saint, and neither do I think Mitt Romney or Michele Bachmann or Rick Santorum or Rick Perry or any candidate that we have out there, that they`re a saint. But I think we need somebody that`s prepared to do the heavy lifting, to get us to where I think we all want to go. And I think when you look at Newt`s leadership in terms of what he did as speaker, we had balanced budgets, we paid down debt, we took on entitlement programs and reformed them. SMERCONISH: OK. WATTS: And we did those things with a Democrat president. So I think his track record as speaker is pretty good. SMERCONISH: Congressman, thank you. Appreciate your time. And also, Professor Jonathan Turley, we appreciate your being here. TURLEY: Thank you. SMERCONISH: Up next, new information about what the officials at Penn State knew, when they knew it, and why they did so little when confronted with evidence of child sexual abuse. You can follow me, by the way, on Twitter, if you know how to spell Smerconish. This is HARDBALL, only on MSNBC. (COMMERCIAL BREAK) SMERCONISH: U.S. officials are keeping an eye on North Korea, where the tradition of power to Kim Jong-il`s son is underway. The North Korean state media announced this morning that Kim Jong-il had died over the weekend and now, his 27-year-old son, Kim Jong-un is taking control of one of the world`s most repressive and enigmatic governments. U.S. officials say they`re very concerned about instability in North Korea, given the country`s nuclear ambitions. We`ll be right back. (COMMERCIAL BREAK) SMERCONISH: We`re back. Mike McQueary, the key witness in the sexual abuse case against Jerry Sandusky, testified publicly for the first time on Friday at a preliminary hearing for two Penn State officials accused of lying under oath about what they`d been told about Sandusky sexually abusing a child. McQueary testified that in 2002, he witnessed extreme sexual activity between Sandusky and a young boy in a locker room shower. However, McQueary is on record as having told varying versions of the story to several different people. Joining me now to talk about McQueary is Kathleen Kane, a former prosecutor, and a Democratic candidate for attorney general of Pennsylvania; and Buzz Bissinger, a "Daily Beast" contributor, Pulitzer Prize winner, and author of "Friday Night Lights." I want to ask you both, what stands out, because I know the three of us has been paying very close attention. What stands out from the Friday testimony? I want to put something on the screen that will leave me to make my first observation. It`s what McQueary said. He was questioned about why he never approached the police about what he believed he had seen, and he said he believed he`d pursued the proper protocol by talking to Penn State vice president Gary Schultz and athletic director Tim Curley. Quote, "I thought I was talking to the head of the police, to be frank with you. In my mind, it was like talking to a D.A. I was talking to the police who knew what to do and what to do with this it." That`s a reference to Schultz. And what strikes me, to both -- what strikes me, Kathleen and Buzz, is that we now have confirmation that Schultz was in the loop in the 1998 incident that was not prosecuted by a local D.A. albeit, he said he didn`t know much about it, but he was in the loop. So, now it`s 2002, when McQueary tells him whatever it is he told him, about having seen this conduct in the shower. And my point is that a foghorn should have sounded at that point. It was four years after that first incident. You`d think that Schultz would have said, my God, it`s Sandusky again. Instead, six more years go off the clock, all the while, presumably, more abuse is taking place. That`s what I found to be significant. Buzz, how about you? From Friday, what was striking? BUZZ BISSINGER, THEDAILYBEAST.COM: Well, I mean, that certainly was striking. I thought McQueary was an incredibly credible witness, despite all this (INAUDIBLE) dragged before. But what was really intriguing and disturbing to me, actually, were the notes of grand jury testimony read into the record, particularly from Paterno. I find it fascinating that his first reaction to what McQueary told him, which was clearly extremely sexual in nature, that`s what McQueary says, Joe`s first reaction is, look, there`s not much I can do. He doesn`t work for me anymore. And that seems to me it`s really now a liability issue. It`s a legal issue. He waits a day, because it`s a Saturday, doesn`t want to disturb anyone on a weekend, says he wants to think about it. Think about what? Think about what? Think about the fact that a former coach former coach has apparently sexually abused a child? And, Michael, you and I talked about this. The next day when he meets with Curley, why is Mike McQueary, the eyewitness, not there? McQueary should have been there and Joe says, listen to what Mike has to say. He`s not there, why? Because Paterno wanted to control the flow of information and have this thing go away. SMERCONISH: Buzz, you`re right, we have discussed that. And I have said to you that I think it`s far too serious a matter to play whisper down the lane and for one individual to assume responsibility for that version of events and pass it on to somebody else. To be a contrarian, I guess I could say because McQueary has so soft-pedaled it, that Paterno didn`t fully recognize what he had on his hand. I know you don`t buy into that. BISSINGER: You know, I don`t buy into that because I mean -- I think, you know, Paterno slumps into his chair, according to Friday`s -- what was read into the testimony on Friday. He slumps in his chair. He says to McQueary, "I`m sorry you had to see that." So McQueary must have told him something. Now, he did not use the words anal intercourse out of respect for the coach. But obviously Paterno saw some disturbing. And it seems what wonder me, that you get the eyewitness, you get McQueary there and you say, look, this is what Mike saw, Mike is going to tell you -- and the whole tenor of this thing might have changed. SMERCONISH: Kathleen, what stands out from Friday? It was an important day in court. What did you find most significant? KATHLEEN KANE (D), PA. ATTY. GENERAL CANDIDATE: As a prosecutor, from their standpoint, I thought the testimony was strong, it was credible and it was consistent. We were worried that maybe McQueary wasn`t going to be consistent. But he was. And I agree with Buzz. All of the actions of the -- Coach Paterno afterwards show that he knew the significance of it. I think that it goes right back to that culture of sweeping it under the rug, of the good old boys club, and making sure that they control that situation despite the fact that that little boy was clearly in trouble and every little boy that came after him. As a prosecutor, I thought the testimony went in very well, I thought the case was very strong both against Curley and Schultz as well as against Sandusky. But as the mother of two little boys, again, I was shocked and I was disgusted and it left me wondering, where is the goodness of these men? When are they going to stop? When are they going to tell the truth, come clean and why do they have such little respect for our system of justice to continue to keep up this lie? SMERCONISH: Kathleen, the cross-examination of McQueary is still to come, as you know from the rules that applied to the preliminary hearing. We`ve still not yet found out, did, in fact, Dr. Dranov tell a grand jury that Friday night that three times he asked McQueary, was there sex? And three times McQueary said no. Quick response to that and then a final word from Buzz because limited on time. KANE: Well, I don`t agree with hearsay on hearsay. It`s unreliable. It`s inconsistent. Let`s hear from that witness himself. Let`s put him under oath and let`s put him before a trial and a jury. SMERCONISH: That is going to happen. Hey, Buzz Bissinger, I`ve only got 30 seconds left, you can take it. BISSINGER: Well, I think Kathleen is right. It seems like the victim, the alleged victim -- I hate to use the word alleged -- he`s at the bottom of the pile. I don`t think Paterno really cares about him. Curley doesn`t care about him. Schultz cares about him. McQueary cares about him but doesn`t do enough. I think the issue is, how are we going to get out of this? And they say, let`s blame it on Second Mile, on Jerry Sandusky`s foundation. It is not our problem. SMERCONISH: Got to end it there. Thank you, Buzz Bissinger and Kathleen Kane. When we return, I have a final thought or two about the Penn State scandal I want to share. You`re watching HARDBALL, only on MSNBC. (COMMERCIAL BREAK) SMERCONISH: Last Friday, there was an important hearing in the Penn State case. It featured two hours of testimony from Mike McQueary, a former Penn State football who in 2002, at a time when he was a graduate assistant, claims to have witnessed Jerry Sandusky raping a boy in the football locker room showers. While what McQueary saw and said is being challenged, one thing we know is that no one called the police in 2002. No, the police were not called until 2008 as a result of the courage of a high school student who went to his principal and said that he was being victimized by Sandusky. He`s referred to in the grand jury summary as victim number 1, not because he was the first to be victimized but because he was the first to come forward. And because of him, there are now a total of ten known victims and 50 charges of abuse pending against Sandusky. And frankly, it strains credulity to believe there are only 10 victims if there`s one real victim. My hunch is that there are many more than 10. But where would we be without victim number one? Arguably, the case would still be the stuff of cover-up. That`s what I kept thinking while reading minute by minute tweets last Friday from media members in the courtroom for the preliminary hearing for former athletic director Tim Curley and vice president Gary Schultz. Remember, there was a report of abuse by Sandusky that was investigated by Penn State police and referred to a local D.A. back in 1998. The D.A. declined to prosecute. Four years later is when McQueary saw something in the showers. He told the athletic director about it and the vice president in charge of campus police, a man who was in the loop on the claim four years prior. No matter how McQueary described it, you`d think a foghorn would have gone off, alarm bells would have sounded and an investigation launched at the time that he brought this to their attention in 2002. But that`s not what happened. Instead, six more years passed and it wasn`t an adult who brought this to an end, it was a young man who had been victimized. He`s paid a price for his courage. As "The Patriot-News" newspaper said this weekend regarding victim number 1, his story gave others the strength to come forward to share their stories with authorities. Together, their testimonies have built a mountain of evidence against Sandusky and led to the fall of men once thought untouchable. Without him, it might still be continuing. Once he came forward, others did likewise -- others who until that moment were presumably suffering in silence. We ought to take a moment and reflect upon how a brave boy confronted an evildoer at a time when cowardly adults had simply closed their eyes and shut their mouths. The grown-ups at Penn State, it seems, can learn a lesson in personal responsibility from the children they`re supposed to be protecting. That`s HARDBALL for now. Thanks for being with us. "POLITICS NATION" with Al Sharpton starts right now. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END

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