'Countdown with Keith Olbermann' for Monday, July 13
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Guests: Lawrence O'Donnell, Jane Mayer, Jonathan Alter, Jonathan Turley, Chris Cillizza

KEITH OLBERMANN, HOST: Which of these stories will you be talking about tomorrow?

The still unrevealed, still secret, still legally dubious bonus secret Bush program to get al Qaeda - the one on which CIA Director Panetta pulled the emergency brake this spring and then told Congress. Dick Cheney ordered the CIA to not tell Congress for eight years. But was that because the plan was too much or because the plan was too little?

"Special prosecutor" - the words are but whispers but they are the whispers of the attorney general, Mr. Holder. An actual criminal investigation into torture?

The Sotomayor hearings: invitation to an anti-climax. As Senator Graham says to her, "Unless you have a complete meltdown, you're going to get confirmed."

And the Sarah con woman chronicles. She's going to start her own conservative party - with Democrats. Plus: Levi Johnson is now talking about her, quote, "stress levels."

All that and more - now on Countdown.

(MUSIC)

OLBERMANN: Good evening from New York.

The same Bush-Cheney administration which failed to heed warnings from its own officials and from al Qaeda, itself, that failed to prevent the worst attack ever on U.S. soil, that failed to get the perpetrators of that attack, is also - we learned today - the same administration which failed to come up with a single viable plan for the CIA to capture or kill members of al Qaeda, despite running an eight-year long mission so secret that the vice president ordered the CIA to not tell Congress about it.

"The Wall Street Journal" today reporting that discussion of plans to kill al Qaeda leaders tapered off within six months after 9/11. According to former intelligence officials saying Bush and Cheney didn't support a proposal to send teams of CIA and Special Forces after al Qaeda the way Israel got the terrorists who attacked the Munich Olympics.

On March 13th, 2002, six months and two days after 9/11, Mr. Bush himself said publicly of bin Laden, quote, "I truly am not that concerned about him."

Tonight's fifth story: Mr. Cheney now reduced to defending their toughness by sending his daughter out to defend them, spinning that "Wall Street Journal" story - as we will dissect presently - to suggest that it somehow reveals Democratic weakness on national security.

Cheney forced to play defense now with the weekend's revelation that it was he who ordered the CIA not to comply with the laws requiring full intel briefings for congressional leaders, followed quickly by today's "Wall Street Journal" story that what Mr. Cheney concealed from Congress were those failed attempts to come up with CIA plans for getting al Qaeda - a story that raises a host of questions, considering the congressional leaders had already been briefed about the president's 2001 directive ordering the capture and killing of al Qaeda members.

On June 23rd of this year, CIA officials concerned about misleading Congress still, told the new director, Leon Panetta, about the al Qaeda effort - what details about it no one has yet said. Panetta then told Congress, essentially confirming - to the dismay of the right-wing - Speaker Pelosi's previous claim that the CIA had not told her in 2002 about the waterboarding it was conducting at that time.

Let me turn first to Jane Mayer, author of "The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals," and, of course, a staff writer at "The New Yorker" magazine.

Thanks for your time tonight.

JANE MAYER, "THE NEW YORKER" MAGAZINE: Great to be with you.

OLBERMANN: Congress and the public obviously have known for years that President Bush authorized the CIA to kill members of al Qaeda - probably no one would have an argument with that. There would have been no reason to withhold that from Congress if that was the end of it. So, there's no reason for that to stun members of Congress as they reportedly were stunned when the director briefed them last month.

So, what is it that we're missing in this narrative?

MAYER: Well, there are some details here, obviously, that we don't yet have, though they seem to be coming together. There is a story in the British press - it sounds like "The New York Times" is working on a piece, too - that suggests that these were kind of Mossad-like hit squads that were going to be authorized, possibly, to operate in some of our allied countries without informing the governments in those countries.

So, there are some potentially controversial aspects to this that are that haven't completely surfaced yet. And - you know, and part of the reason that I think it's worth thinking about why Congress would be upset about this is, if you go back into the history of the CIA, the whole idea of intelligence oversight, it came out in the 1970s after plans for assassination attempts surfaced by - involved the CIA.

So, the idea that Cheney might have specifically tried to keep Congress from knowing about what could be seen as assassination attempts is certainly going to push a lot of buttons up on the Hill.

OLBERMANN: I know that Seymour Hersh's hint of the story in Minnesota in the spring was about stuff run out of the Pentagon and specifically not tied to the CIA, but it does seem rather remarkable that we might be talking about in a period of months two secret assassination squads somehow touching on the vice president of the United States.

Is that too much of a coincidence? Could we be talking about the same squad or just two aspects of the same operation?

MAYER: Well, I mean, the particulars - from what we know so far anyway, about this particular hit squad was that it was never up and running. They did, though, it sounds like begin to train specific killers, who might be able to rove the world looking for al Qaeda members. I mean - - and we know, of course, we've got a drone program that killed some from the sky. But there's something different about them working secretly in, you know, allied countries.

So - and in terms of Cheney, I mean, what we've seen over the last few months, really, is that every time another document comes out about the Bush administration's programs, you can see Cheney's fingerprints on it. And so, basically, take a look at the - there was a fascinating report that came out last Friday that was put together by inspector generals in the.

OLBERMANN: Right.

MAYER: . in the intelligence community. It's full of details about both Cheney and his former lawyer David Addington. They were the people who seemed to be behind the warrantless wiretapping program. And somehow, weirdly, it was up to them to decide which other lawyers got to be cued in about this in the administration.

So, you had this very strange situation where there was this intense secrecy and many of the subject area experts were kept out of knowing about these programs.

OLBERMANN: Jane, maybe I'm being a little simple in asking this, but if you put everything together - is it possible that the reason Cheney would have pushed for the secrecy here was not because too much was done too illegally to try to get al Qaeda, but that, ultimately, the history of this program would show how little was done to get al Qaeda?

MAYER: Well, I mean, I think one of the revelations that came out in that - certainly in the inspector general's report, was - which is very important, I think - was that on the warrantless surveillance program which twisted our Constitution into knots turns out to have been ineffective. According to government experts who are nonpartisan, it did not help in any serious way in our anti-terror efforts.

So - I mean, I think it is possible that the more we know about some of these programs, the more we're going to find out that they were unnecessary.

OLBERMANN: Speaking of unnecessary, last point here. "The Washington Post" reported today that the CIA had hid from Congress. It was called a technically oriented intelligence collection effort unrelated to terrorism suspects, and that was "The Wall Street Journal" version of this. Should we be skeptical of these anonymous sources suddenly appearing with details that seem so widely at variance from what we think we know?

MAYER: Well, I mean, it - I think that there's probably a real jump ball going on politically to try to paint what was withheld from Congress as unimportant. You know, the CIA and some of the Republicans on the Hill are trying to say, this wasn't an important program. But if it turns out to have actually been an elite sort of assassin's squad that could work without - in various countries - without telling the host countries, I think it's going to be hard to say it was minor.

OLBERMANN: Yes, and certainly, they won't say it was minor. Jane Mayer of "The New Yorker" magazine and author of "The Dark Side" great thanks for your time tonight.

MAYER: Glad to be with you.

OLBERMANN: Speaking of the jump ball politically, as promised, now the right-wing, or at least the right-wing of the Cheney family now trying to push back on the numerous reports that Mr. Cheney ordered the CIA to defy the intel laws mandating congressional briefings.

One unnamed Bush official is telling NBC's Andrea Mitchell the administration did not tell Congress about the CIA efforts because, quote, "Congress didn't ask."

Mr. Cheney, himself, ducking comment all weekend, allowing his daughter, Liz, the political appointee at State, to fight for him in an interview with the conservative "Washington Times," claiming - without any factual basis whatsoever - that Democrats object to getting al Qaeda rather than, in fact, that they object to being kept in the dark about plans to get al Qaeda - or more accurately, the Bush-Cheney failure to make a plan to get al Qaeda.

(BEGIN AUDIO CLIP, SOURCE: WASHINTONTIMES.COM)

LIZ CHENEY, FMR. VICE PRES. DICK CHENEY'S DAUGHTER: There's this big piece in "The Wall Street Journal" this morning that says that it was a number of different concepts or ways that we could capture or kill al Qaeda leaders in the days after 9/11.

Now, I am really surprised that the Democrats decide that's what they want to fight over. I mean, if they want to go to the American people and say that they disagreed with the notion that we ought to be capturing and killing al Qaeda leaders, you know, I think it's just going to prove to the American people one more time why, you know, they can't trust the Democrats with our national security.

(END AUDIO CLIP)

OLBERMANN: Let's turn to MSNBC political analyst Jonathan Alter, also, of course, senior editor at "Newsweek" magazine.

Good evening, Jon.

JONATHAN ALTER, MSNBC POLITICAL ANALYST: Hi, Keith.

OLBERMANN: So, why are Democrats trying to stop Republicans from getting al Qaeda?

ALTER: Well, the Cheneys figure that the best defense is a good offense. So, they'll try to turn this on the Democrats.

But look - what's happened here is - either this was not an important program, in which case we failed at something that you and I and everybody else.

OLBERMANN: Yes.

ALTER: . assumed we were doing. You know, when all this bad stuff was happening to the Constitution - I don't know about you - but I assumed, well, at least we're killing the bad guys in the dark of night. That the dark side was good for something, offing al Qaeda.

So, either they didn't do that - in which case we all should be more scared now about terrorism, or if it was a big, important program and they didn't inform Congress about it, they broke the law. Ever since the 1970s, the CIA has been required to report at least what they call the "gang of eight," members of the leadership and the chairman and ranking members of the intelligence committees in each chamber. They must report on their operations.

That oversight was implemented after the last CIA abuses in the 1970s which are quite similar to what we're talking about - the so-called Phoenix Program in Vietnam targeted Viet Cong leaders for assassination. When they came out, it gave the CIA a black eye and the law was changed requiring them to inform Congress.

So, if it comes out that they broke the law - under orders from Dick Cheney - that does lead to some questions about whether the vice president was involved in law-breaking. Does that mean we're going to see him frog marched out of the Cheyenne Airport? I doubt it, but we could see, you know, some kind of inquiry as to whether the vice president broke the law.

OLBERMANN: Yes. Just bring him to the White House so we can frog march him out of the White House to please, at least, Joe Wilson.

But number two on this list here, does that still supply the necessary astonishment that we've heard described from the members of the House who were finally briefed on this by Mr. Panetta when he said, "Oh, by the way, I just shut down this program that you didn't know anything about"? Does it still - does there not feel like there's another really Shaquille O'Neal-sized shoe waiting to drop on this?

ALTER: Yes. And you can see little sort of hints that it varied in some of these stories. Now, I don't want to make it seem like I know something that I don't, because we're flying blind here. But there was an indication that, perhaps, a large number of prisoners were killed by Afghan allies under the supervision, perhaps, of the CIA. Or did they give them a green light for executions, you know, during the time we were fighting the Taliban? Not clear.

And I don't want to suggest I know that that happened, but that's the sort of thing...

OLBERMANN: That's the level of things we might be.

ALTER: Yes. That we might be talking about.

OLBERMANN: And that it would - it would - what would the fallout from that be? I mean, would that - does the astonishment that the Democratic members who wrote, the "group of six" that wrote that letter, is that astonishment somewhat backfill to make sure that their fingerprints or other Democrats' fingerprints aren't on some knowledge, guilty knowledge of this, from the winter of 2001-2002? That this is entirely going to be the Republicans and Mr. Bush's problems when it comes to the surface, whatever it is?

ALTER: Well, you certainly can't under estimate the ability of politicians of both parties to cover their fannies when they need to. But I get the sense from Panetta's actions - and remember Panetta, even though he served under Bill Clinton and now under Barack Obama, he used to be a Republican. He's a relatively conservative guy. And I don't think he's carrying water here.

OLBERMANN: Yes.

ALTER: And he was upset at the degree to which Congress was left in the dark about an important program. So, obviously, there's a lot more to learn about this. I don't think the Obama administration wants big hearings, but I hope we have them.

OLBERMANN: Lastly, is there any way to sort of reverse-engineer what Dick Cheney might have been responsible for based on this sudden switch by his daughter to this claim of - you know, oh, it's just going to be a fight over national security and the Democrats will lose that one? Does that tell us anything of what he might be guilty of in this?

ALTER: No, but I think - as Jane pointed out - you know, his fingerprints are on all of this.

OLBERMANN: And that would be new, wouldn't it?

Which - that's right - which of these vice presidential assassination squads will you be talking about tomorrow?

Jonathan Alter, of "Newsweek" and MSNBC - as always, good to see you.

Thanks for coming in.

ALTER: Thanks, Keith.

OLBERMANN: A special prosecutor for torture and it's serious enough that the attorney general has reportedly asked for a list of 10 nominees. Of course, there will be limits. The quasi - lawyers who fabricated the documents authorizing the torture - not to be prosecuted; and anybody who followed those documents - not to be prosecuted; and anybody who didn't follow those documents and went overboard but was acting in good faith - not to be prosecuted.

At what point does special prosecutor become a meaningless brand name? And who could this one still prosecute? The only people seemingly still on the table are those who were tortured.

(COMMERCIAL BREAK)

OLBERMANN: When the term special prosecutor becomes an oxymoronic brand name like "jumbo shrimp" or "virgin brand condoms," Jonathan Turley on the tepid murmurings from the Obama administration about the torture investigation.

Then the Sotomayor hearing - and if the Republicans have anything damaging in disguise, it is certainly - to quote Churchill - very effectively disguised.

And as Sarah Palin hints at forming her own party, her ex-future son-in-law with an overlooked bombshell - he hints she quit as governor because she just couldn't handle the pressure of doing the job.

You're watching Countdown on MSNBC.

(COMMERCIAL BREAK)

OLBERMANN: Attorney General Eric Holder is seriously considering the appointment of a special prosecutor to look at whether Bush era detainees were illegally tortured - but in our fourth story on THE Countdown: That headline comes with such huge caveats, the opportunity might itself be squandered.

The decision could be made soon about the same time the Justice Department completes an ethics report about Bush administration officials who drafted those now-discredited memos which authorized waterboarding and so-called enhanced interrogation.

Which brings us to the caveats - any investigation into torture abuses would be narrowly focused, limited to a small number of the most egregious cases in which CIA officers or contractors went far beyond what was authorized. This according to our own Pete Williams. Anyone who followed the Bush era legal guidance would not be investigated nor would those who strayed from the technical limits of interrogation but acted in good faith - the "oops, sorry, I broke you in half" defense.

The attorney general's somewhat tormented process described in "Newsweek" as "There were startling indications that some interrogators had gone far beyond what had been authorized in the legal opinions issued by the Bush Justice Department, which were themselves controversial. He - that is Holder - told one intimate that what he saw, quote, 'turned my stomach.'" According to "Newsweek," Holder also asked his staff for a list of 10 candidates, four prosecutors, five from within the Justice Department and five from outside it.

Let's call on the professor of constitutional law at George Washington University, Jonathan Turley.

Jon, good evening.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: Hi, Keith.

OLBERMANN: The caveats in a moment, but is something likely to happen here now in the way of special prosecutor?

TURLEY: Well, the question, of course, is: what will happen? What he's described is more of a bonsai plant than a prosecutor that you can twist and restrain to grow the way you want. It's not a special prosecutor. And, in fact, for civil libertarians, I think they'd rather have nothing at all rather than what he is suggesting.

The biggest problem is that Holder and President Obama appear to be rewriting the law we created in Nuremberg. We convicted people like Herbert Klemm, who was convicted with these other judges. This was the third of the 12 trials in Nuremberg and he was a justice official in the Nazi regime.

He was convicted for his legal opinions that allowed for war crimes. We tried him. We created that rule. Principle four of the Nuremberg law specifically says following superior orders is not a defense.

So, the Obama administration are rewriting Nuremberg with all of these preconditions and they're rewriting it in a very ignoble and - in my view immoral image.

OLBERMANN: So, is - is the Obama administration shifting? Is this an answer to those who say, "No, you have to do more" because - as you point out - the law would seem to impel it? Or is there some indication, perhaps, that Mr. Holder is striking out on his own and that there might in this be the germ of a hopeful sign that this could be broadened as time goes by rather than narrowed, or rather than being nothing at all?

TURLEY: Like a lot of civil libertarians, I must admit, I've grown more cynical with time, with this administration. They have tried so mightily to avoid any prosecution or even investigation of war crimes that there is a lot of cynicism out there.

And I'm just not convinced. I think that Attorney General Holder is finding it very hard. He's becoming almost a tragic, comical figure like Sergeant Schultz saying, "I see nothing, I see nothing," when every week brings out compelling evidence of a war crime.

On top of that, we had soldiers in harm's way. And I think, the Obama administration is preparing for what may come. What happens when one of our soldiers is waterboarded and al Qaeda says, "Well, it's interrogation"? What happens if an Iranian tribunal orders a waterboarding of an American and says, once again, "This is no greater than the interrogation allowed by the United States"? That is what the loss of moral clarity brings to a country like the United States.

OLBERMANN: Well, never mind that. Right now, in North Korea where we have two journalists who have been - who are in jail; two American journalists for coming into the country illegally. That's a practical example right now where something - I mean, I'm not expecting they would waterboard them after having convicted them, but they certainly have no moral clarity based on what we've done in response to waterboarding.

TURLEY: That's right. What we are doing is not just frittering away our moral standing. We're putting our own people at great and grave risk. That's what Nuremberg gave us.

Nuremberg gave us not just a moral superiority over those who committed these crimes. It also gave us a clarity in how we would insist our own soldiers and citizens be treated. We've simply lost that.

OLBERMANN: The Republican senator, Mr. Alexander, said that if Holder does even this, he also needs to look under the subject of rendition under President Clinton when Mr. Holder was the deputy attorney general - thereby saying, "OK, if you're going to investigate, investigate yourself." I assume your answer to that is - you know, bring it on.

TURLEY: Yes, well, I think, I'd be more than happy to have them investigate all such occasions and I don't believe - or policies - and I don't believe that the Republicans are serious about this.

But Republicans have to make an important decision. They cannot go in and create a legacy for their party as the party that fought to protect the right to torture. I mean, whatever political aspirations they may have, they must at least retain something of a moral definition of themselves. I mean, they're the party of Abraham Lincoln and see where they have gone.

I just don't believe most Republicans really want that. But what also, I think, Attorney General Holder has to do is accept - appoint a special prosecutor and tell him to go find crimes where the evidence leads. And that's the moral clarity that we're lacking in terms of these recent stories.

OLBERMANN: Yes, Archibald Cox could come in most useful at this point.

TURLEY: Yes.

OLBERMANN: Jonathan Turley of George Washington University - as always, Jon, thanks for your clarity on this. Thanks for your time, too.

TURLEY: Thanks, Keith.

OLBERMANN: All right. Good night.

You know what was the best part of having that G8 summit in Italy last week? Clearly, it was the moon light. Wait a minute. Wait for it. There just - a little late. OK, hold - hold on. Hold on.

All right. So the graphics sort of hid what you're seeing there but you get the point.

And the southern California pastor who says it's just fine to spend 2 percent of all your prayers on asking God to kill people like the president.

Worst Persons in the World - ahead on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: Bests in a moment - and swearing helps you withstand pain. Something I could really use tonight right about now.

First, fittingly, given the start of the baseball all-star celebrations, 121 years ago yesterday was born Harry Krause, the greatest baseball pitcher who ever lived - briefly. A century ago, Krause, a rookie, won all 10 of his first 10 starts for the Philadelphia Athletics. Six of the 10 were shutouts, four of the six shutouts were one-to-nothing shutouts. One hundred years ago today, his record stood at 10-0 with six shutouts.

Then something happened. Probably a torn rotator cuff, and he won just 26 more games in his career before being sent to the minor leagues with a sore arm three seasons later.

Let's play Oddball.

We begin in L'Aquila, Italy, where last week, the world's leaders met for the G8 summit. Italian television network TG1 covered the event from all angles. The news team was there for the staged photo-ops as well as protests.

This one is not far from the actually meeting. You can see the TG1 reporter in the foreground; a group of protestors way behind her. And then three guys wandering into the middle ground and .

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE SPEAKING ITALIAN LANGUAGE)

(END VIDEO CLIP)

OLBERMANN: Meaning - please, a close-up. Did I mention that U.N. Security General Ban Ki-moon was attending this summit? Protestors caught the director sleeping and drop chow, and this is exactly why we don't do our show on the ground level. Pass on the press cam (ph), thank you.

In Greenville, South Carolina a squirrel has a yogurt cup stuck on its head. Part of Yoplait's new fur on the bottom line of yogurt, or perhaps a show they can do an hour on on CNN Headline News.

An NBC camera crew shooting a story at Furman University happened to shoot this little fellow in distress - and thankfully, the WYFF crew did the right thing. They kept the tape rolling but then tried to rescue him. Follow the bouncing squirrel so we can bring you the footage tonight in Oddball, and then they put the camera down and they pulled the cup off Little Rocky's head. Wow.

The great Sotomayor showdown. This is all the Republicans have?

And Sarah Palin's Levi Johnson problem. Now, he is implying she quit as governor because the job was too stressful for her.

These stories ahead, but first time for Countdown's top three best persons in the world.

Dateline Pittsburgh, number three, best typo, that Morse Code message from the airplane beacon atop the Grant Building in Pittsburgh; 80 years of Morse Code in little red lights, telling pilots what city they're seeing before. It turns out it's been spelling out P-I-T-E-T-S-B-K-R-R-H. Even with the bizarre native accent, that's not how you spell Pittsburgh. Authorities say they're fixing it.

Dateline New York, number two best admission. You thought Bill Moyers. A Mr. Wendall Potter says that Michael Moore's moving on health care reform "Sicko" was dead on, particularly its positive picture of health care in Canada and England, and he adds that American health care industry tried to derail the picture because it was true. Quote, "we shouldn't fear government involvement in our health system. There is an appropriate role for government and it's been proven in the countries that were in the movie."

Who is Wendall Potter? Some Obama specialist? No. He was until last year the head of public relations for Signa, the 18 billion dollar health care and health insurance corporation.

And dateline England, Number one, best excuse, Dr. Richard Stevens of the psychology school there. Using intricate neuro experiments with volunteers and ice water, he finds that one group can endure pain nearly 50 percent longer than another group. The longer lasting? Those who were encouraged as they thrust their arms into a tub of freezing water to swear out loud and keep swearing. Those who were told not to swear, but instead repeat a word with which they would describe a table, they lasted an average of just 75 seconds. The swearers lasted two minutes.

The one caveat, the more swearing, the less effective it is as a psychological means of pain management. There is no data on those who described the table by swearing at it.

(COMMERCIAL BREAK)

OLBERMANN: Even the ranking Republican on the Judiciary Committee fully aware from the outset that he is marshalling his forces for a lost cause. Our third story in the Countdown, in his opening statement, Senator Jeff Sessions referring to President Obama's nominee to the Supreme Court as Justice Sotomayor.

Day one of a week of confirmation hearings for Judge Sonya Sotomayor. The star witness silent for all but eight minutes. The gallery not so much; about four protesters arrested for interrupting the proceeding at various points. Among them Norma McCorvey, the Jane Roe of Roe v. Wade.

The Republican attack on Sotomayor multi-faceted, beginning with President Obama's statement that he wants a justice with empathy.

(BEGIN VIDEO CLIP)

SEN. JEFF SESSIONS (R), JUDICIARY COMMITTEE: Call it empathy. Call it prejudice. Call it sympathy. But whatever it is, it's not law. In truth, it's more akin to politics. And politics has no place in the courtroom.

(END VIDEO CLIP)

OLBERMANN: Wonder what the members of the Judiciary Committee called it in 1986, when two Republicans voted against the nomination of the same Jeff Sessions to be a federal district judge because of allegations that, as a federal prosecutor, he sought to suppress the black vote. Today, the now senator's first as ranking member on this committee. Others in the GOP falsely claiming that the Supreme Court has overturned more of Judge Sotomayor's decisions than it has of any other judge.

(BEGIN VIDEO CLIP)

SEN. JON KYL (R), ARIZONA: I agree that her judicial record is an important component of our evaluation. I look forward to hearing why, for instance, the Supreme Court has reversed or vacated 80 percent of her opinions.

(END VIDEO CLIP)

OLBERMANN: A tip for Senator Kyl, who is apparently new to the country; the Supreme Court reverses an overwhelming majority of the cases it accepts. When the court agrees with a decision, it will, far more often than not, turn away a case and let the ruling of the lower court stand. Democrat Russ Feingold laying bare the Republican talking point, meanwhile, of judicial activism.

(BEGIN VIDEO CLIP)

SEN. RUSS FEINGOLD (D), WISCONSIN: I suggest to everyone watching today that they be a little wary of a phrase that they're hearing at this hearing: judicial activism. That term really seems to have lost all usefulness, particularly since so many rulings of the conservative majority on the Supreme Court can fairly be described as activists in their disregard for precedent, and their willingness to ignore or override the intent of Congress.

At this point, perhaps, we should all accept that the best definition of a judicial activist is a judge who decides a case in a way you don't like.

(END VIDEO CLIP)

OLBERMANN: Credit Lindsey Graham of South Carolina with today's rare Republican moment of honesty.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: I don't want it to be lost that this is mostly about liberal and conservative politics more than anything else.

Now, unless you have a complete meltdown, you're going to get confirmed.

(END VIDEO CLIP)

OLBERMANN: When it was finally her turn to speak, Judge Sotomayor knocking down suggestions that she would allow her biases to guide her from the bench.

(BEGIN VIDEO CLIP)

SONYA SOTOMAYOR, SUPREME COURT NOMINEE: In the past month, many senators have asked me about my judicial philosophy. Simple: fidelity to the law. The task of a judge is not to make law. It is to apply the law.

(END VIDEO CLIP)

OLBERMANN: The judge also seeming to make indirect reference to the wise Latina controversy today.

(BEGIN VIDEO CLIP)

SOTOMAYOR: My personal and professional experiences help me to listen and understand, with the law always commanding the result in every case.

(END VIDEO CLIP)

OLBERMANN: Time now to turn to our own Lawrence O'Donnell, contributor to the "Huffington Post," former chief of staff of the Senate Finance Committee when it was chaired by the late Senator Daniel Patrick Moynihan. Good evening, sir.

LAWRENCE O'DONNELL, MSNBC POLITICAL ANALYST: Good to be here, Keith.

OLBERMANN: The Republicans have been sliming this judge for 24 hours a day, seven days a week, the last six weeks, possibly taking off Memorial Day. Should we be surprised that that was the prevailing strategy in the opening statements even today?

O'DONNELL: Well you could look at it that way. But elected Republicans have not done that much of the sliming. It's mostly been from the Limbaugh zone. What these guys knew - they have all met her. All the Republicans on the committee have met her. Some of them were on the committee for her last confirmation hearing. So they always knew what America was going to hear today when Sonya Sotomayor opened her mouth for the first time.

So what struck me was how careful they were about it. Even Jon Kyl saying at a certain point he thought - he said I hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court. That was not something you were hearing in Republican choruses about this before.

But the reason to look at it from the other side, the reason they went so easy on her, and the reason they all stressed positive things about her as a person, is that they knew when they finished speaking America was going to hear her for the first time. And what they were going to hear was the voice of a wise and educated, yes indeed, Latina woman, with a very slight flavoring from the Bronx, a formalized diction that comes from English being her second language, and a very warm, maternal aspect.

And that kind of character is not someone you can go up against easily politically. When she finished her statement today, our own Chris Matthews on the live coverage had to say he was feeling one of those thrills of his, by which he means it's one of those thrilling moments to be an American, watching someone like that rise to this point. And those Republicans know that Chris wasn't the only one feeling the thrill.

OLBERMANN: Thank you for explaining that. The Sessions role here is kind of ironic, that he's the ranking Republican on this Judiciary Committee. Should we believe that his past experience with it doesn't make him kind of bizarrely slanted on the subject of judges and race and all the rest of that?

Plus, should we believe that he did not read the whole wise Latina speech? You can read that out loud in about ten minutes. And if he didn't read it, and didn't get the context in which she's basically saying, in the whole thing, you know, you can't rely on just your own experience, just your own background. It's the reverse meaning of what the snippet says. Are we supposed to believe Sessions doesn't know that?

O'DONNELL: I can personally believe Sessions doesn't know that, Keith, having worked in the Senate myself. And if you go back to his confirmation hearing, which he couldn't make his way through as a candidate for the bench, himself; I've never seen a weaker candidate actually make it all the way up to a confirmation hearing. We may have had weaker candidates who never even got that far through the clearance process.

And he is in over his head. It is one of those only America stories that Jeff Sessions could go from being rejected by that committee to being the chairman of it. And he can thank the wonderful United States Senate seniority system. You don't take an exam to become chairman. You just sit there long enough and it happens.

OLBERMANN: Sounds like he's an EOE hire to me. I don't know. Last point; is there anything of substance? Are there any meltdowns? Are there any secrets wonderfully disguised that were hinted at today? Is there anything worth while the rest of these hearings, besides the fact of the confirmation?

O'DONNELL: No. Lindsey Graham has got it absolutely right. There's no suspense left here. She's going to be able to handle all the issues that they're going to want to raise very easily, the empathy questions. Lindsey Graham looks to me like a Republican vote for her, along with Orrin Hatch, who voted for and enabled her confirmation last time around, when he was chairman of that committee, the last time she went through.

OLBERMANN: If it's somebody from the Bronx versus anybody else, always vote on the person from the Bronx. Lawrence O'Donnell of the "Huffington Post" and MSNBC.

O'DONNELL: That's the way I play it.

OLBERMANN: There you go. Thank you, sir.

So she's really going rogue. All Democrats who would like Sarah Palin's endorsement, say it with me now, suicidal.

Boss Limbaugh compares Judge Sotomayor to Senator George Allen. Wait, you're comparing somebody who isn't racist to somebody you say isn't racist.

And when Rachel joins you at the top of the hour, her special guest, Senator Sheldon Whitehouse of Rhode Island on the intel program about which Dick Cheney ordered the CIA not to tell Congress. Call it Project McGovern.

(COMMERCIAL BREAK)

OLBERMANN: Now it can be told, the Republican party tried to stage an intervention early this spring to get Sarah Palin to return phone calls. That's next, but first time for Countdown's number two story, tonight's worst persons in the world.

The bronze to Boss Limbaugh, feebling fading into the background lately, and thus begging for attention with even wackier stuff than usual, telling his audience during the Sotomayor hearing today: "so Russ Feingold, a couple words that Sonia Sotomayor said taken out of context, you mean like Macaca? George Allen saying Macaca? We heard about that for weeks and months. Sotomayor's comments are much worse than Macaca, and they're frequent."

Quick refresher, Senator George Allen called a dark skinned blogger videotaping one of his speeches the racial epithet Macaca. To tie Allen on the racial slur level, the judge would have had to call somebody, like say Limbaugh, whitey. Worse than that, Ofay (ph). As in hey, Limbaugh, yes you, you Ofay, you. Limbaugh says your frequent. There you go.

The runner-up, Jim Thompson, the owner of the right wing website Free Republic, which has moderated comments, meaning a grown up is supposed to read them and delete the crazier ones. But Thompson's folks waited as long as three days removing a comment thread devoted to the racist rage of a disturbing large number of his posters, possibly some of the same people who had previously conducted polls on the site on how best to topple the freely elected government of the United States.

After President Obama's daughter appeared in a t-shirt with a peace sign on it at the G-8, a thread at the Free Republic was opened with another photo of the first lady, captioned "to entertain her daughter, Michelle Obama loves to make monkey sounds."

Some of the posts describe the Obamas, individually and collectively, as, quote, "typical street whore," "bunch of ghetto thugs," ghetto street trash," "dirt bags," "wonder when she'll get her first abortion," "they make me sick, the whole family, mammy, pappy, the free loading mammy-in-law, the misguided children, and especially little cousin."

No indication of how many of the racist attacks on Malia Obama were made by people who simultaneously were threatening anybody who even mentioned Sarah Palin's children. The most prominent response at Free Republic was not an apology, but rather the claim the comments were planted. This was, in turn greeted, by more racist comments by veterans of the site, and a call to action to flood the e-mail accounts of a list of the main stream media people, people like Don Imus of MSNBC, the "CBS Evening News" with Dan Rather, and Paula Zahn and Bill Hemmer and Tucker Carlson and Robert Novak of CNN.

Let me know if Dan Rather still answers his CBS e-mails, clowns.

But our winner, Pastor Wiley Drake (ph), the leader of the Buena Park Southern Baptist Church in California. He has confirmed that he does in fact pray for the death of President Obama. But he says that such petitions to god should only make up about two percent of your daily prayer diet. He says that the correct version of this is to pray that the lord smite your opponent or bring him plagues or pestilence. Just stick to scripture and then aim it in the proper direction, kind of like voodoo.

Pastor Drake says he does, indeed, pray for Obama's death, but he also prays or has prayed for the deaths of Presidents Clinton and George W. Bush and Pastor Rick Warren. Some sort of I'm working this side of the street, bub, thing, I guess. I don't go for this praying for other people's deaths myself. But if you do, this would seem to offer an unexpected opportunity for bipartisanship.

Combined, supporters of President Obama and supporters of President Bush and supporters of Pastor Warren, surely combined, they out-number supporters of this Pastor Drake. I mean, certainly they can summon up more of these cumulative smites, plagues, pestilence, and death prayers than he can. Seems to be a simple question of math.

So at prayer time, remember the name Pastor Wiley Drake, today's, but possibly soon no longer to be eligible for a repeat victory, worst person in the world.

(COMMERCIAL BREAK)

OLBERMANN: The almost ex-governor of Alaska goes very much rogue, this time virtually threatening to start her own conservative party, pledging to stump for independents and even conservative Democrats. But in our number one story, the question now is will anybody want her to?

Sarah Palin telling the "Washington Times" she plans to jump immediately into the national political arena. Quote, "I will go around the country on behalf of candidates who believe in the right things regardless of their party label or affiliation," me. "People are so tired of the partisan stuff. Even my own son is not a Republican."

That would be Track, who is a registered nonpartisan, along with his father, Todd. Of course, Todd's previous affiliation was with Alaska's secessionist party.

This as the "New York Times" reports on earlier attempts by the GOP to save Palin from herself. A senior official from the Republican Governors Association outlining advice, with firm counsel for Palin to follow: make a long-term schedule and stick to it; build a coherent home state agenda that creates jobs and ensures re-election. Another senior official asking the governor to please return her phone calls.

Meanwhile, more of a department of almost in-laws. Levi Johnston still talking. His baby's grandmother wanted to do a reality show, he says, and thought it would be nice to take the money and run. Johnston maintains Palin is an incredible lady, and just he'd do about anything for her, except vote for her.

(BEGIN VIDEO CLIP)

LEVI JOHNSTON, FATHER OF SARAH PALIN'S GRANDDAUGHTER: I just don't think she can handle the stress level as governor. I don't think she can handle it as president or vice president.

(END VIDEO CLIP)

OLBERMANN: And word from the other Palin marriage of convenience;

Senator John McCain remarking he was surprised but not shocked by news of Palin quitting.

(BEGIN VIDEO CLIP)

DAVID GREGORY, "MEET THE PRESS": You have faced personal torture, personal attacks, political attacks, investigations. You have never resigned from anything. Is it consistent with your qualities of leadership to resign an elected post like there?

SEN. JOHN MCCAIN (R), ARIZONA: Sure. If you - the question is how can you serve most effectively?

(END VIDEO CLIP)

OLBERMANN: Like not serving at all? Joining us now, White House reporter for the "Washington Post," Chris Cillizza. Chris, good evening.

CHRIS CILLIZZA, "THE WASHINGTON POST": Good evening, Keith.

OLBERMANN: We can have a giggle at the image of some Democrat somewhere calling Governor Palin for an endorsement? But obviously she was chosen by John McCain for this express purpose of rounding up stray Hillary Clinton supporters. Is it possible, even after what actually happened to that theory in reality last year, that maybe she is still thinking that way this year, that she is some sort of multi-party transcendent figure?

CILLIZZA: Let me be brief, no. You know, I don't think so, Keith. I think what she is trying to do - remember, her appeal is a reform appeal, an independent appeal. She was elected in 2006 as governor, running against the guy named Frank Murkowski, who was the Alaska establishment. She was elected as someone who fought that establishment.

I think she wants to get back to those roots. It's why you're seeing her make statements like she would campaign for an independent or a conservative Democrat. The truth of the matter is they wouldn't ask and she wouldn't accept.

OLBERMANN: You've been reporting that Palin's political action committee raised over 700,000 dollars in its first six months. But did she just hint in talking about going around the country for Democrats or whoever, no matter what the party label is - I guess that means Democrats that this money could be going to something that at least resembles third party activity, as opposed to purely being directed towards the Republicans?

CILLIZZA: There's always the possibility. Look, she has 450,000 dollars in the bank. She could give that money to Democrats. That's always a possibility.

That said, the majority of this money is going, in my mind, to Republicans. Might she give to a Democrat here or there, simply to boost her credibility, that independent credibility? I guess, but I think it's unlikely.

OLBERMANN: In all of this, did we miss the headline here? Did Levi Johnston, with his endless chattering on the morning shows, really offer something new when he was talking about her stress levels? Because her friends have been talking about how stressed the governor is. They claim she's under weight, that her hair is thinning. Was it actually that that was a very simple answer, and on a human level very understandable as to why she would have resigned from a high pressure job as a governor of any state would have to necessarily be?

CILLIZZA: Well, Keith, as someone who jumped to a very quick conclusion, me, saying this is all about 2012, as soon as I heard it, which, by the way, was in a Mexican restaurant in Texas - that was really super convenient for me. But look, there's a lot, I think, that goes into these sorts of decisions. I do think the stress on her and her family is a very legitimate thing.

I think she was thinking about 2012. She was thinking about her own financial well being, and her family's financial well being. She was also thinking about the fact that her family life was not - was number one, playing itself out in public, which, frankly, is a little bit her fault. But it was also not playing out the way she wanted it to.

So I do think it's a legitimate part of the way she made this decision to say, you know what? Nothing good is coming out of this. I am walking away.

Now, what impact that has on her political future I think is debatable, as we heard David Gregory and John McCain. That's up for debate. But I do think stress and just the way in which her family was being treated in the press was a part of her decision.

OLBERMANN: We'll have to see what the higher calling is. That's still the mystery in this. Chris Cillizza of "The Washington Post," as always, great thanks for the insight and the time.

CILLIZZA: Thank you, Keith.

OLBERMANN: That is Countdown for this the 2,265th day since the previous president declared mission accomplished in Iraq. I'm Keith Olbermann, good night and good luck.

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