'Countdown with Keith Olbermann' for Monday, June 28th, 2010
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Guests: Jonathan Turley, David Corn, David Weigel

KEITH OLBERMANN, HOST (voice-over): Which of these stories will you be talking about tomorrow?

Therapy Sessions. The embittered ex-judge, Jeff Sessions, senator from Alabama, rejected from the very committee on which he now sits, opens the Kagan hearings by trashing Justice Thurgood Marshall.

(BEGIN VIDEO CLIP)

SEN. JEFF SESSIONS (R), ALABAMA: Throughout her career, Ms. Kagan has associated herself with well-known activist judges.

(END VIDEO CLIP)

OLBERMANN: Mr. Durbin has heard enough about activist judges from the

GOP.

(BEGIN VIDEO CLIP)

SEN. DICK DURBIN (D), ILLINOIS: I have two words for them: Citizens United.

(END VIDEO CLIP)

OLBERMANN: The current court takes off the safety. Chicago handgun bans banned after a weekend there with 26 shootings. And three gunned deaths.

The Gulf, day 70. As Mississippi is hit, Governor Barbour 180s from playing to media to save our shores.

The passing of Senator Robert Byrd, his mixed legacy, and the practical politics of replacing him and his vital vote - with Lawrence O'Donnell.

Republicans repeat: screw the jobless. Cutting off benefits will force them to get jobs. My "Special Comment."

The gather your army's tea party candidate is back for more.

(BEGIN VIDEO CLIP)

RICK BARBER (R), ALABAMA CONGRESSIONAL CANDIDATE: What's it called when one man is forced to work for another?

UNIDENTIFIED MALE: Slavery.

BARBER: We shed a lot of blood to stop that in the past, didn't we?

(END VIDEO CLIP)

OLBERMANN: So Lincoln would side with Alabama to stop Obama's slavery? Dave Weigel has talked to the candidate.

And as the witness said afterwards, now I know that dumbness doesn't come from just sound bites.

(BEGIN VIDEO CLIP)

SARAH PALIN (R), FORMER ALASKA GOVERNOR: This is Reagan country - yes. And perhaps it was destiny that the man who went to California's Eureka College.

(END VIDEO CLIP)

OLBERMANN: Illinois. He went to college in Illinois.

That woman is - all the news and commentary - now on Countdown.

(BEGIN VIDEO CLIP)

PALIN: I got my water. Do I have my straws? I want my straws. And I want it fast, please.

(END VIDEO CLIP)

(MUSIC)

(END VIDEOTAPE)

OLBERMANN: Good evening from New York.

Republicans opposing the Supreme Court nomination of Elena Kagan are going to lose. But as the confirmation hearings kicked off today, Republicans show they might still snatch defeat from the jaws of more defeat.

Our fifth story tonight: Never mind the nominee, the GOP went after an American judicial icon instead.

But first, the formalities: Elena Kagan, solicitor general of the United States who argues government cases before the Supreme Court, in her opening statement today did nothing to change what she herself has called the vapid and hollow nature of confirmation hearings, assuring critics in the vaguest, most unobjectionable terms of her impartiality.

(BEGIN VIDEO CLIP)

ELENA KAGAN, SUPREME COURT NOMINEE: What I've learned most is that no one has a monopoly on truth or wisdom. I've learned that we make progress by listening to each other, across every apparent political or ideological divide. I've learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I've learned the value of a habit Justice Stevens wrote about more than 50 years ago of understanding before disagreeing.

I will make no pledges this week other than this one: that if confirmed, I will remember and abide by all these lessons.

(END VIDEO CLIP)

OLBERMANN: Republicans announced to "throw it at the wall and see what sticks" strategy at the outset, attacking everything from her admiration of a retired Israeli judge who was also admired by the right-wing Justice Antonin Scalia, throwing in her volunteer work to the presidential campaign of Michael Dukakis, her well-publicized decision as dean to uphold Harvard Law School's anti-gay discrimination policies by banning military recruiters until the ban was ruled to have jeopardized the entire university's federal funding. And even, potentially, scandals of the Clinton White House for which she worked in the late '90s.

There was, as well, spirited debate over which party's judges are more activists. Democrats hammering the Roberts' court decision to go far beyond the Citizens United case, and then on due decades of precedent, letting corporations pour endless money into political campaigns.

But the day was defined by a stunning and apparently coordinated attack on Kagan's association with and admiration for a giant of American history - most of the Republican judiciary committee members mentioning in at least some what disparaging terms - former Supreme Court Justice Thurgood Marshall, the first black person to serve on the Supreme Court, the first black person to serve as solicitor general, so mainstream a figure that most of the times, he argued before the Supreme Court in the '50s and '60s, the Supreme Court agreed with him - including the landmark Brown versus Board of Education, in which the Supreme Court finally reversed its shameful endorsement of separate but equal, ending segregation as the law of the United States.

Senate Republicans today slammed Thurgood Marshall's clerk for admiring Thurgood Marshall.

(BEGIN VIDEO CLIPS)

SESSIONS: Ms. Kagan has associated herself with well-known activist judges who have used their power to redefine the meaning of words of our Constitution and laws in ways that not surprisingly have the results of advancing that judge's preferred social policies and agendas. She clerked for Judge Mikva and Justice Marshall, each well-known activists.

SEN. JON KYL (R), ARIZONA: Justice Marshall's judicial philosophy, however, is not what I would consider to be mainstream. As he once explained, you do what you think is right and let the law catch up. He might be the epitome of a results-oriented judge.

And again, Ms. Kagan appears to enthusiastically embrace Justice Marshall's judicial philosophy, calling it among other things, a thing of glory.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: And at the end of the day, if you think more like Justice Marshall than Justice Rehnquist, so be it. The question is: can you make sure that you're not channeling your political agenda, your political leanings when it comes to time to render decisions.

(END VIDEO CLIPS)

OLBERMANN: Lord, there's a lot of stupidity in this country.

Let's bring in MSNBC political analyst, Howard Fineman, one of my arguments against what I just said, also senior Washington correspondent and political columnist of "Newsweek" magazine.

HOWARD FINEMAN, MSNBC POLITICAL ANALYST: I was going to say, thanks for the introduction.

OLBERMANN: Present company absolutely excluded.

But by our count here, at least five of the seven committee GOPers trashed Marshall today. "Talking Points Memo" said they mentioned him 35 times with Thurgood Marshall, Jr. in the gallery.

FINEMAN: Right.

OLBERMANN: What are they thinking other than, you know, we don't want these jobs anymore, please don't elect us and throw us out of the country and, you know, let's trash everybody we can who was of any use in American history for the last 50 years?

FINEMAN: Well, I was waiting for Senator Sessions there to call them well-known outside agitators.

OLBERMANN: Gee whiz. Yes.

FINEMAN: The outside agitators phrase, and I know Goody Marshall,

Thurgood Marshall, Jr., the son, and we stole glances there. I was in the

in the hearing room, just sort of shaking our heads here.

The thing is that they managed to maneuver themselves, the Republicans did, into a position of sounding like, at least by implication they disagreed with Brown versus Board of Education, because in that case, Marshall was the lead attorney, he was the NACP, the landmark legislation that was a guide post for him. Not really, yes, he said that thing about, you know, the law catches up.

But Marshall really stood for the proposition and Elena Kagan, in her opening remarks, really drove this point home. Marshall stood for the proposition that the slogan that's emblazoned on the - above the Supreme Court entrance way is true, "Equal Justice Under Law." And as she said, he stood for the idea of a fair shake for all Americans.

That's something that the Republicans just can't afford to be on the wrong side of. And they set themselves up to be run over by Kagan and by half the Democrats on the Senate panel, as well.

OLBERMANN: Yes, the idea that they, and among they, I'm including one of the Keebler elves who represents of the great state there. Are they trying to push, is that Marshall saw himself as above the actual law or at least not constrained by the actual law because he would rule what he thought was best for the country and what was right and just? Put this now into context in terms of Kagan's nomination for us.

FINEMAN: Well, as I say, she stressed the point that what the record of Marshall really stands for and what the record of the so-called activist court of the Warren years in the '50s, '60s, and early '70s stood for, was the idea of broadly interpreting individual rights to include racial minorities and religious minorities and sexual minorities and so forth. The idea of, again, equal justice under law, that this was the great achievement of those years.

And it's one, I think, that is as mainstream as is possible to be in America at this point. And sometimes I think, you know, this stuff sounds OK on paper in a conference - in a conference room at the federalist society where they're still debating Marbury versus Madison. But it just doesn't work in modern America. And it ends up making Sessions and Cornyn and these guys looking like they're from another century and another planet. It just - it just doesn't work in the modern context.

OLBERMANN: Just as tawny was not entirely wrong when he - I'm waiting for that. Now, so, all right, what - if she's a shoo-in as she seems to be despite this, is, in fact, the news here - as you suggested, that this is some nice panel discussion at the federalist society, not open to the public - even the GOPers who don't face primaries need to have their credentials stamped by the tea party of whoever is to the right of tea party for November?

FINEMAN: Well, maybe yes, but I don't think even for the tea partiers, this is the way to do it for the most part. If they want to really get the tea parties, they should have spent all of the time talking about big government, activist government, you know, all that kind of stuff, that they're going to comb through the hundreds of thousands of pages of stuff they've got from Kagan to look for.

To me, if they're going to be just impressing the tea party, that's their theme. Even with most of the tea partiers, and I've said this before here, I don't think resentment of integration and, you know, the social progress of the '60s is what the tea party is really about.

OLBERMANN: Let's hope not. Howard Fineman of MSNBC and "Newsweek," one of the great indications our American education system does work from time to time - thank you, Howard.

FINEMAN: Thank you, Keith.

OLBERMANN: On its final day of its session, the Supreme Court today coming down in favor of gun rights in a controversial five-to-five ruling, one that is likely to spur more gun control lawsuits nationwide. Majority on the court is ruling the Second Amendment's guarantee of the right to bear arms applies to state and local gun laws not just at the federal level.

The justices in minority vigorously dissenting - but what about the second part of that amendment, you know, the beginning, quote, "a well regulated militia"? I think it was nearly two years ago today that the Supreme Court first ruled that the Second Amendment protects an individual's right to carry a gun, that in another five-four decision. This new decision says that the nation's founders considered the Second Amendment right to keep and bear arms, quote, "among the fundamental rights necessary for our system of ordered liberty."

A victory this is for Otis McDonald, a plaintiff in the case who has wanted a handgun to protect himself from drug dealers and gang members on Chicago's south side. That city now is struggling with an epidemic of gun violence. At least 26 people shot over the weekend and three killed there.

But how soon Mr. McDonald might actually be able to buy a gun is unclear because the court failed to decide the constitutionality of the two gun control laws at issue in the case. It merely returned the case to the lower courts, leaving it to them to decide whether strict gun control laws can be reconciled with the Second Amendment.

To try to figure this one for us - we're joined now by Jonathan Turley, constitutional law expert, professor of George Washington University Law School, and from the greater Chicago land area.

Thanks for your time tonight, Jon.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL: Hi, Keith.

OLBERMANN: If the justices did not actually toss the handgun ban in Chicago, is today's decision more symbolic than meaningful?

TURLEY: Well, it's pretty ironic, you know, given the Kagan hearing when they're complaining about results-oriented judges. This is a pretty results-oriented opinion. It's actually the reason that Alito was criticized by some of us when he came up for confirmation that he tended to have these outcome determinant types of opinions.

And what's fascinating about this is it's a bloody nightmare for lower courts, that he's basically saying, look, this thing is a fundamental right that applies to the states. And then basically says, good luck, buddies, try to figure it out the best way you can. And that's why Justice Breyer writes his dissent and says this is virtually a mission almost impossible, that you're going to have judges look at hundreds of different types of laws to see if they apply to a very generally worded opinion.

OLBERMANN: Now, in - there are two extremists sort of responses to this. One is: this is going to result in Tombstone, Arizona, 1881. Everyone's going to be able to pack heat whenever they want to, under any circumstances. And on the other hand, Mayor Bloomberg of New York who said today, it's a setback for gun control, but only a technical setback, that it's clear that the court is saying, if you refine these laws and make them more specific and make sure they apply to keeping the guns out of the hands of terrorists and criminals, et cetera, there won't be a problem.

Do you come down on either side or somewhere in the middle?

TURLEY: Somewhere in the middle. That is - it's important to remember that once you recognize this as a fundamental right that applies to all states, it triggers what's called the strict scrutiny test, which requires states and cities to show what's called a compelling interest. It's a very high standard. It's the same standard that applies to free speech - and you know how hard it is to restrict free speech in many direct conflicts.

So, a lot of these laws are going to go down under that standard. But Alito in his opinion goes out of his way, to his credit, to say, look, not all laws are going to be unconstitutional. We recognize that laws dealing with the mentally ill and for schools and those types of restrictions are likely to be preserved.

The problem is they really don't give much in terms of a standard for lower courts. I speak to judges around the country all the time, and this is the type of opinion that really sends them into orbit.

OLBERMANN: Yes.

TURLEY: I mean, it is - it is a time of thing that says you guys figure it out. And there's one case we'll be watching called Nordyke in the ninth circuit - and that is in front of the court of appeals and could be in front of the Supreme Court and in front of a possible Justice Kagan in relatively short time.

OLBERMANN: The dissent and the majority opinion probably could not have been at further extremes in this. The dissent included the idea that the decision two years ago was wrong in the first place, saying the Second Amendment protected a federal right to - some federal right that everybody has to buy a gun. But it also said that even if that was a correct decision, it still shouldn't apply locally.

So, it's two steps removed from what the majority was saying here to the point of Kagan's supposed qualifications to be on the court, that she might be the broker who occasionally makes a five-four swing in one direction turn into a five-four swing in the other. With a dissent like this, was there even - would somebody with that magical power have found find any of the five to drag over to the other four?

TURLEY: This is - actually there's two cases like this. There's a gun case. There's also a case involving Christian law students, and these people are on different continents. So it is - it is ridiculous to suggest, you know, whatever benefits and advantages and pluses Kagan has, she's not going to bridge that.

These conservatives, people like Scalia are not going to say, you know what, you really made me look very deeply within my soul, I think I'll cross on the gun issue. This is a very ideologically divided court. And it's going to stay that way. She will swap out for the vote on Stevens. And the result would have been the same.

Stevens is going out with a very powerful dissent to add to his legacy. But that legacy in this area will remain unchanged in my view with Kagan taking that seat.

OLBERMANN: Jonathan Turley of George Washington University and the great state of Illinois - great thanks.

TURLEY: Thanks.

OLBERMANN: Day 70 in the Gulf. The same governor who all be refused to deploy the National Guard, who blamed the media for scaring off tourists with false reports of impending oil tides is now begging for federal help because the oil tide has hit Mississippi.

(COMMERCIAL BREAK)

OLBERMANN: The same governor who said that the media was to blame, his beaches were not endangered, everything was great, now pleads for federal help as the BP oil disaster swamps his shores.

His mixed legacy and in the wake of his passing, the practical politics of replacing him and his vote on financial reform.

After he applauds the GOP's killing of the extension of jobless benefits, a "Special Comment" on the rush to send this country back to 1931.

And this top chronicler of the far-right interviews Alabama tea party candidate Rick "Gather Your Armies" Barber after his latest ad in which he and Lincoln defeat Obama-led slavery. Plus, we have a special announcement about him.

All ahead on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: Today, Governor Haley Barbour of Mississippi called for greater action by BP and the federal government as oil begun to wash ashore at this state's beaches.

In our fourth story: this is the same governor who previously expressed concern for BP and the oil industry, and blamed the media for reports of oil threatening his state's beaches.

In the meantime, plans for better collection efforts at the Deepwater Horizon site will likely be delayed due to swells caused by tropical storm Alex.

Over the past two days, oil washed ashore at one of Mississippi' largest resort cities, Biloxi - with anecdotal reports of children stepping in oil, tourists cutting their vacations shorts. Oil has also been spotted at St. Andrew's beach and Gulf Park estates.

So, today, Governor Barbour declared that cleanup efforts must be greatly increased and he called on BP and federal officials to respond. Over the past two months, in preparation for the inevitable, the governor had deployed only 58 National Guard troops out of a total of possible 6,000 of them. And his cheap complaint about the whole thing was that the media was scaring people away.

Barbour has also criticized the moratorium on exploratory wells in the Gulf. And the day before BP agreed to create a $20 billion fund, Governor Barbour expressed concern about the money flow, quoting, "If BP is the responsible party under the law, they're to pay for everything. I do worry that this idea of making them make a huge escrow fund is going to make it less likely that they'll pay for everything. They need their capital to drill wells. They need their capital to produce income."

In the meantime, BP's planned to double oil collection at the Deepwater Horizon site will be delayed by six or seven days. According to a company official, workers need a flat sea, as it is called. And tropical storm Alex will - or could cause swells of feet to 12 feet despite expectations that the storm will pass west of the location.

Let's turn now to the Washington bureau chief of "Mother Jones" magazine, columnist for PoliticsDaily.com, David Corn.

David, good evening.

DAVID CORN, MOTHER JONES MAGAZINE: Good evening, Keith.

OLBERMANN: So, this is one of those, hey, Governor Barbour, where's your blame the media, blame the administration messiah now deals, is it?

CORN: Well, you know, when you start stepping on to tar balls, it's hard to blame the media elite for what's going on. I mean - I feel terrible for what's happening to the people who live in the Gulf Coast region. But here you have a governor in Mississippi who was a lobbyist for big oil whose campaign for governor, who fundraises for big oil for years.

And, you know, for 70 days - 70 days he was denying the obvious. And when - excuse me when President Obama authorized the deployment of about 6,000 troops, National Guardsmen and women who could help prepare for this eventually, Governor Barbour took him up on 1 percent, actually 0.53 percent, 0.9 percent, less than 1 percent of that. And now, you know, he's kind of, you know, has to do something.

So, you know, this is not - you know, the chickens coming home for roost. It's the oils coming and hitting one of the slickest politicians in the nation.

OLBERMANN: Very nice.

Does he actually convert on anything meaningful? Or is he still going to fret about this moratorium being impacting 1/100 of the Gulf's 3,600 wells? Will he still be worrying about taking too much from BP? I mean, any of the substantive things are going to come up?

CORN: Oh, I'm guessing, if more oil hits the coastline, you will not hear him talking in a sympathetic way towards BP. He won't be complaining about the media. You know, being a governor, being an executive, people can measure your performance rather obviously. And he ended up with decent grades from the locals in terms of what happened with Hurricane Katrina, because he was governor at that point, too, of Mississippi. I think we're going to see a big case of what have you done for me lately, though, in the next week or two coming out of Mississippi.

OLBERMANN: Is Governor Jindal the template for what we're going to see with Governor Barbour, because in Louisiana, Mr. Jindal today said the federal government needs to lead or get out of the way. And he again complained red tape is delaying the federal response that is necessary for Louisiana's benefit, but hasn't he given a bunch of conflicting answers about what he wants the governor to do? Hasn't he all over the map as well?

CORN: Well, he, too, has not used all those National Guard personnel that the president authorized for use. He's been back and forth with the federal government on whether to build a berm to protect part of the Louisiana coastline. And the federal government gave him permission to do so as long as he didn't dig up sand from behind the berm which could create a hole, which could make matters worse, which is what the state proceeded to do. So, and the fed said, wait a second, you've got to stop doing that and dredge a different way. He then complained about red tape.

OLBERMANN: Yes.

CORN: So, that was kind of a phony complaint that still is an argument going back and forth at the moment.

OLBERMANN: I'm not advocating this by any stretch of imagination - but is there enough oil to wash ashore to get any of these people to recognize that big oil industry and poor government regulation is a bad mix?

CORN: I don't understand - the Republican position up until maybe even today was we want small government and big oil. Small government and big oil, you put the two together, no regulations and big oil that cares more about lobbying than it does about safety regulations, and you see what happens.

I love for them to campaign on this locally and nationally, Haley Barbour talked about running for president in 2012. I think that's a pretty far stretch.

But in any event, let them be the party of small government and big oil, that can only help the Democrats.

OLBERMANN: Small government, and big oil, and a chicken covered in grease in every pot.

David Corn of "Mother Jones" - thanks for your time, as always, David.

CORN: Thanks, Keith.

OLBERMANN: Political reeducation is possible if it starts within the many legacies of the late Senator Robert Byrd. That maybe the most lasting. Lawrence O'Donnell, ahead on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: The truly mixed legacy of Senator Robert Byrd and the practical implications of his passing. And the Alabama Tea Partier who claims Abraham Lincoln would agree with him, taxation with representation is slavery.

First, a quick sanity break. Let's play Oddball.

To Denver, Colorado. I fell on my keys. When big bellies are welcome and flops are winners, it's the 14th Annual Belly Flop Contest. Help with the launch was obviously allowed. Denver firefighters competed against civilians for the crown. No explanation for this sea nymph. Didn't I see you in a Rick Barber founding fathers ad? Since the winner was based on most creative, it looks like this little filly won.

To Holyoke (ph), Massachusetts, former home of Rachel Maddow, where nothing brings out the town's emergency services like a bear in a tree. No disrespect. Mind you, getting a bear out of a tree is not that easy. The environmental police were called in. And the 250-pound black bear required three shots from a tranquilizer gun as well as the promise of keys to the city. He was later released back into the forest.

But he did not take away the prize of the best unconscious bear acrobatic. Yes, even that big guy was safely returned to freedom and a life of prosperity and happiness for all.

Lawrence O'Donnell on the passing of Robert Byrd, the man and the replacement of Robert Byrd, the senator. Dave Weigel on the Tea Partier now implying Lincoln would side with Alabama against Obama and, quote, slavery. And a brief Special Comment on the absence of human feeling in those who could postulate that extending unemployment benefits encourages unemployment, ahead on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: He was the longest serving senator in American history, a Democrat with a truly mixed legacy, a child of Appalachia. He considered his proudest achievement giving hope to the people back home in West Virginia. A former Klansman, he had filibustered against the Civil Rights Act, only to later support other civil rights measures.

He supported the war in Vietnam, but was one of the few who opposed authorizing the war in Iraq. Robert Carlyle Byrd, dead at the age of 92. And in our third story, as the tributes continue to pour in, the death of Senator Byrd not only signifies an end to an era in Washington, it also presents a political problem for the remaining Democrats.

At this hour, the fate of the Wall Street reform bill unknown, because Democratic leadership was planning on holding the final votes this week. But without Senator Byrd's vote, there is no clear path to the 60 needed to break the expected filibuster from the Republicans. The Senate's reform bill may - passed in May with the help of four Republicans, Senators Susan Collins and Snowe of Maine, Senator Chuck Grassley of Iowa, Senator Scott Brown of Massachusetts.

Now, Senator Brown is hinting he may vote with the GOP. Democratic Senator Russ Feingold confirming today he's still a no on the latest version of the bill. As for Mr. Byrd's seat, West Virginia Secretary of State Natalie Tennant announcing earlier a special election will not be held until 2012, leaving the state's Democratic governor, Joe Manchin, to appoint someone to fill the seat.

Senator Byrd, who passed away early this morning, eulogized by his Senate colleagues throughout the day. A black drape placed over his desk on the Senate floor. Tonight, flags at the U.S. Capitol, the White House, throughout West Virginia flying at half staff.

Time now to call in MSNBC political analyst, former Democratic chief of staff of the Senate Finance Committee, Lawrence O'Donnell. Lawrence, good evening.

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

OLBERMANN: In terms of the Wall Street reform bill, what does Harry Reid do now without Robert Byrd? Does he still force a vote?

O'DONNELL: Well, he is probably going to have to pick up a Democrat. Russ Feingold, if you actually listen to what he says, to my ear, sounds exactly like Dennis Kucinich about a week before Dennis Kucinich changed his vote on health care reform. In fact, Feingold has been saying, I'm not going to enable something that doesn't do the job to be passed so that people can pretend it does the job.

Those are almost Dennis Kucinich's words exactly. I think this president and this Democratic caucus, Harry Reid in the Senate, Nancy Pelosi, can get that vote from either Maria Cantwell or Feingold if they need the Democratic vote to do it. It looks like they will, because Scott Brown seems to be moving away from what he's calling a 19 billion dollar tax. Some argue that it's more like an FDIC fee that the banks are paying in order to, you know, complete the regimen that regulates all of their activities, as FDIC does already. And so it looks like there's an available Democrat I think that can pull this out for them.

OLBERMANN: Explain the decision by the secretary of state and the ruling by the secretary of state of West Virginia about the special election not coming until 2012. This was - as the Wellington quote goes about Waterloo, was a near run thing, wasn't it?

O'DONNELL: Well, the West Virginia statute is written in a way that is going to have a few arguments going over this for the next few days. But it seems to indicate, if they've already had the primary election, as they have had in West Virginia this year, you cannot then schedule this special election after that. And so it looks like this 2012 decision is safe. It is very good for the Democrats. The Democrats would not want to be defending that seat in 2010 in West Virginia, in this political climate.

They may not be able to defend it in 2012. But at least they can hang on to it through the appointment through this period of time.

OLBERMANN: Governor Manchin is saying he's not going to appoint himself to the seat, but one of the spokespersons said the governor would consider important things coming through Washington that directly relate to our state. Obviously, that would be mining and climate legislation. What does that mean for the Democrats and another upcoming key vote, which is the energy reform bill?

O'DONNELL: That means the democrats cannot count on this appointee in any energy vote or any vote that might negatively impact the coal industry. The congressional delegation, both senators, congressmen from West Virginia are - have always historically been aligned to some degree with the coal industry and with coal interests. It is their biggest employer. It is their biggest industry. They protect it as best they can. And so Jay Rockefeller, who was a liberal on many issues, is very careful on how he represents coal interests.

And so I'm sure that Governor Manchin will follow in that tradition. He's not going to be appointing someone who is going to be eagerly looking for ways to restrict our use of coal in this country.

OLBERMANN: Senator Pat Leahy said that Robert Byrd was the keeper of the Senate flame. When I have thought of Senator Byrd, I have always thought of him as sort of representative of the nation's ability to grow, even at times in our history when it seemed like the ability to grow had died. He certainly showed that you can evolve. What do you think is going to define Robert Byrd's legacy?

O'DONNELL: Well, because the career is so long, Keith, because it's so many decades long in the congress, just like Ted Kennedy's, there are several different careers there. And some sections of it, he has much more right to be proud of than others. I think what he ends up as, in terms of legacy, his final legacy is one of respect for the institution of the Senate, in fact, a reverence for it, Keith.

When I was on the Senate floor and Robert Byrd was on the Senate floor, I felt like I was in church. We had to behave very carefully in all sorts of ways. And he - and part of this throughout the - both parties, with him gone and with that reverence and that respect is dropping every day. I just - I just don't see how this Senate is going to be operating in any sort of sensible way in the future.

OLBERMANN: Lawrence O'Donnell, soon to be coming to MSNBC prime time lineup. Haven't had a chance to congratulate you on the air about that. Congratulations, my friend.

O'DONNELL: Well, thank you, Keith, for letting me sit in that chair. That apparently is the route to the prime time lineup. I can't wait to see who you select next to fill in for you.

OLBERMANN: I'm going to have an auction. I'm finally going to get smart and have an auction. Thanks, Lawrence.

O'DONNELL: Thanks, Keith.

OLBERMANN: So having a fake George Washington tell him to gather his armies was not enough. Tea Party boy is back with a fake Abraham Lincoln, helping Alabama fight slavery from Obama.

Special comment tonight; it is not politics, it is simply not being human. The Republicans cut off the only hope of more than a million jobless Americans.

And when Rachel joins you at the top of the hour, amidst reports General McChrystal is to retire from the military, the man whose article began the process, Michael Hastings of "Rolling Stone," will join her.

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OLBERMANN: Sarah Palin outdoes herself at a speech at Cal State Stanislaus, ahead.

First, as promised, a Special Comment on jobless benefits.

A year ago, a heartless Missouri State Representative named Cynthia Davis lashed out against school summer breakfast programs. She didn't understand the point. Why should the government keep kids from having breakfast at home with their folks? This woman was so disconnected from privation and want and poverty that it had not occurred to her that not every child has enough food to eat. She added this insulting, demeaning postscript for the hungry children of Missouri: "tip, if you work for McDonald's, they will feed you for free during your break."

As of this month, with their members in the Senate killing a temporary emergency extension of benefits to the jobless, Cynthia Davis's blinkered, belligerent, bestial attitude might as well be the official platform of the Republican party. George Will, rapidly becoming the spokesman for the year 1931, said yesterday that the Republican senators, quoting, "believe that when you subsidize something, you'll get more of it. And we're subsidizing unemployment. That is the long-term unemployment, those unemployed more than six months. Is at an all-time high. And they do not think it's stimulative, because what stimulates is the consumer and savers' sense of permanent income. Everyone knows that unemployment benefits are not permanent income."

So the 1,400,000 Americans who will have lost their unemployment benefits by the end of this week are better off because George Will and the Republicans believe this will get them off their duffs and into those job openings that the Republicans spend the rest of the time reminding everybody don't exist, and that's all Obama's fault.

Hungry kids were eating breakfasts at schools in Missouri because the government wanted to break up their families, not because their families did not have enough money to properly feed them. And the unemployed are unemployed because there are jobless benefits, not because the last administration crashed the economy for the benefit of Wall Street. And their kids will now be eating breakfasts at schools in Missouri because -

And the people that believe these sadistic fantasies, you would consider voting for them?

(COMMERCIAL BREAK)

OLBERMANN: A Tea Party congressional candidate from Alabama invokes slavery in his new commercial. Is he for it or against it?

That's next, but first get out your pitchforks and your torches, time for tonight's Worst Persons in the World, brought to you by Gold Panic, the official sponsor of Glenn Beck's desecration of the memory of Martin Luther King, coming two months from today, August 28th. Listen to Beck blame black people from the same steps of the Lincoln memorial. "Blacks don't own Martin Luther King," Beck said today. Dr. King may have had a dream, but Mr. Beck has a whole series of hallucinations.

The bronze to "US Magazine," actually it's "US Magazine," and every other gossip sheet that simply reported this tripe. Thursday, it reported that my friend Jason Bateman, quote, "outraged 2,000 people" - it's an outrage - Thursday when he cut in line to get a new iPhone at a Los Angeles Apple store. "Everyone literally started booing and hissing," a source tells USMagazine.com. Yeah, not exactly. To my knowledge, only two people today reporting on this. One was a blogger named Jessica Costello, who was one of those web examiners. She got this statement from the Apple store in question at the Grove in Los Angeles. "He was in line at 6:00 a.m., like everyone else who wanted the iPhone. Yes, the article was correct in that he was taken out of line by an Apple employee. But they failed to mention in all these stories that the paparazzi had spotted him first and swarmed him like bees in an angry hive. As he was not able to find cover from this, or he'd lose his spot in line, like anyone else would, we quickly decided that this was unfair to one of our customers, and offered to extract him from the frenzy. Inside the store, he was given no special treatment. He is one of our regular customers, who is here even when there isn't an iPhone launch."

There was some booing, apparently, of the paparazzi who also annoyed the crowd and the neighborhood at 6:00 in the morning. And Jason booed himself. He gets confused. Just remember when you read crap like this in places like "US Weekly," it is usually made up.

The runner-up, Tea Party candidate Sharron Angle, still running for the Senate from Nevada, or whatever planet she's actually from. Now on the lunatic fringe website ResistNet, she's reiterated her solution to the BP disaster. "I was just saying we are over regulating some of our industries. And, of course, the oil and petroleum industries is one of those we've been over regulating. And that is what has been dependent on foreign oil. So that's the kind of thing we need to do with all our natural resources, make sure the government isn't over regulating those industries and causing them to be outsourced."

Because clearly BP's fatal fire in Texas City and the fatal explosion of Deepwater Horizon are the result of over regulation of those American companies like British Petroleum. Nitwit.

But our winner, yes, Sister Sarah. You've by now heard about the gaffe fest that was her speech at Cal State Stanislaus on Saturday. She said, perhaps, 100 things that brand her as a phony. But none is more symbolic as her imbecility, her corner-cutting, her downright endorsement of stupidity instead of intelligence than this one.

(BEGIN VIDEO CLIP)

SARAH PALIN, FMR. GOVERNOR OF ALASKA: Because this is Reagan country. Yeah! And perhaps it was destiny that the man who went to California's Eureka College would become so woven within and interlinked to the Golden State.

(END VIDEO CLIP)

OLBERMANN: Eureka College is in Eureka, Illinois. Illinois, where Ronald Reagan was from. There is a town of Eureka in California, but it doesn't have a college. And Palin went to three different colleges and doesn't have an education. Well, that woman is an idiot.

The half governor of Alaska, today's worst person - there you go again - in the world.

(COMMERCIAL BREAK)

OLBERMANN: Taking advertising liberties with Abraham Lincoln is nothing new. For a century and a half, politicians and others have been crediting him with words he never said, and popular culture has used his likeness for comedic effect in all manner of wacky situations. Take Abraham Lincoln from "Bill and Ted's Excellent Adventure," told students to be excellent to each other. How about the ax battling blood suckers from the trailer for "Abraham Lincoln, Vampire Hunter."

Our number one story, those, of course, were plausible extrapolations of Lincoln. You should see what a Tea Party ad in Alabama has tried to turn him into. Rick Barber is seeking the Republican nomination for the second Congressional district there. Earlier this month, he released a web video in which he lectures actors dressed as founding fathers about our current tyrannical government. And the ad ends with a declaration from the guy in the four dollar George Washington wig to gather your armies.

Today, Mr. Barber is out with a new ad featuring a conversation between himself and the 16th president.

(BEGIN VIDEO CLIP)

RICK BARBER, TEA PARTY CANDIDATE FOR CONGRESS: Hey, Abe, if someone's forced to work for months to pay taxes so that a total stranger can get a free meal, medical procedure, or a bailout, what's that called? What's it called when one man is forced to work for another?

UNIDENTIFIED MALE: Slavery.

BARBER: We shed a lot of blood to stop that in the past, didn't we?

Now look at us. We're all becoming slaves to our government.

(END VIDEO CLIP)

OLBERMANN: First off, don't call him Abe. Joining me now from Washington is reporter Dave Weigel, fresh off an interview with Abraham Lincoln's co-star. And we are very proud to announce is, as of like 20 minutes ago, an MSNBC contributor. Welcome, Dave.

DAVID WEIGEL, MSNBC CONTRIBUTOR: Well, thanks, Keith. I appreciate it.

OLBERMANN: And you thought last week was fun. Wait until you see what this week holds for you. Mr. Barber suggests we're all slaves to the government. And then we have images of concentration camps. Did he defend this to you, either as an ad or just in terms of a - you know, the continuity of the theme here?

WEIGEL: Yeah, he defended it pretty instantly. He stands by this. The way he put it to me was that people like him because he's not politically correct. And other candidates are not going to explain to Americans how close we are to tyranny. The way he defended the imagery of World War II is that, look, the Germans in 1933 didn't think they could go down a tyrannical path, and Americans didn't think they could go down a tyrannical path.

So anyone who thinks they're going to walk him down from this is totally wrong. Lad Allenger (ph), who directed the ad, just likes to up the ante with these viral Youtube videos of these candidates.

OLBERMANN: I was going to ask, is there a reason he doesn't go whole hog on this? Why is he limiting himself to Washington and Lincoln? Why not Jesus and Gandhi and Elvis Presley?

WEIGEL: Well, Lincoln was a Republican. And I mean, I think - I want to defend, too, the usage of Lincoln here, because we know from history that the real Lincoln had a more high-pitched voice than the one that ends up in some commercials. And this Lincoln has a high-pitched voice.

This is actually pretty resonant. It really is. It's pretty resonant for the way a lot of people think about taxation. Taxation is forced. Now, is it gauche to compare it to slavery? I'm not going to tell an Alabama voter what's gauche. But, you know, from what I can tell, everyone knows Rick Barber thinks like this. A lot of people think like him, maybe not a majority of the Republican primary electorate.

OLBERMANN: One thing, did Barber express to you any awareness? Never mind talking about being politically correct, just being correct. Is he aware that they still tend not to like Mr. Lincoln in Alabama for various reasons? Or did he seem to be aware that Lincoln was the president under whom the first income tax was established in 1862, during the Civil War, and thus if you're going to pin the slavery that Barber is essentially complaining about on a president, you'd have to pin it on Lincoln. Did any of that sort of register?

WEIGEL: Well, there's that and forced conscription. But no, he's trying to make a point. In these conversations with various founding fathers - and I guess we include Lincoln in that group for some reason - he just really thinks that's the only way to bring people to this point. And I think that's resonant with the way Tea Partiers make points that a lot of people laugh at, as a way of saying, look, it doesn't feel like much when the government takes this out of your paycheck. And it won't feel like much when they say your energy bill's not going to go up. But let's take it back to the these first elemental principles.

I remember an ad Russ Feingold ran in 2007 or something, a video ad, where he talked about the Patriot Act by having - not him, probably more clever - but some actor talking to George Washington and telling him all the great fascist powers he could have if he wanted to. So there is a grand tradition of summoning the founding fathers, Ouija board style, and having them make a point for you.

OLBERMANN: Always, you give them reverb, radio reverb, reverb. Last point that is almost lost in this entire thing; how does the race stand? Is he going to win the primary? Does he have a chance in the general?

WEIGEL: Well, he's running against a candidate that national Republicans supported a bit more. He surprisingly forced a runoff with her in this primary. Local radio doesn't like him that much. His campaign organization is improving as a result of picking up all this attention. But this ad was directed by the guy who did Dale Peterson's ad. You remember Dale Peterson shooting at signs. He actually cameos in this ad, if you watch the whole thing. Dale Peterson didn't win.

So Barber is going to get a lot more attention than he should. He might get more speaking engagements out of this. In the general, whoever wins this is going to face Bobby Bright, who is a really conservative Democrat, who, unlike Parker Griffith, decided to remain in the party and try to win in November. The odds are still with Bobby Bright that he can win this, despite a lack of color he might have compared to an ad like this.

OLBERMANN: MSNBC contributor Dave Weigel, great thanks as always, and good luck with this.

WEIGEL: Thank you, Keith.

OLBERMANN: Thank you, Dave. That's Countdown for this, June 28th. It is the 2,615th day since President Bush declared mission accomplished in Iraq, the 2,204th day since he declared victory in Afghanistan, and it is the 70th day of the Deepwater Horizon disaster in the Gulf. 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