All In with Chris Hayes, Transcript 2/15/2016

Guests:
Jess McIntosh, Dave Weigel, Lawrence Lessig, Sherrilyn Iffil
Transcript:

Show: ALL IN with CHRIS HAYES
Date: February 15, 2016
Guest: Jess McIntosh, Dave Weigel, Lawrence Lessig, Sherrilyn Iffil

(BEGIN VIDEOTAPE)

CHRIS HAYES, MSNBC HOST (voice-over): Tonight on ALL IN –

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: If the Democrats want to
replace this nominee, they need to win the election.

HAYES: The fight for the Supreme Court breaks wide open.

JEB BUSH (R), PRESIDENTIAL CANDIDATE: Obama justice should not be
appointed in an election year.

HAYES: Tonight, what President Obama plans to do and how Republicans are
plotting to stop him.

Then, back to the future.

GEORGE W. BUSH, FORMER PRESIDENTA: I`ve been misunderestimated most of my
life.

(LAUGHTER)

HAYES: The return of W. greeted with a Trump assault.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Ever ask yourself why his
brother went silent for all these years?

HAYES: As a full-on demolition derby breaks out in South Carolina.

CRUZ: Donald`s numbers are plummeting after the debate.

TRUMP: I don`t think Cruz deals well with pressure. I think he`s a basket
case.

CRUZ: Donald Trump sided with MoveOn.org and Michael Moore.

CRUZ: He`s an absolute disgusting liar.

HAYES: And why Donald Trump today put the Republican National Committee on
notice.

TRUMP: As far as I`m concerned, they`re in default of their pledge.

HAYES: When ALL IN starts right now.

(END VIDEOTAPE)

HAYES: Good evening. I`m Chris Hayes.

As if the 2016 election wasn`t unpredictable enough and did not have high
enough stakes, as of Saturday, with the sudden death of Supreme Court
Justice Antonin Scalia, age 79, the balance of power in all three branches
of the U.S. government is now up for grabs, at a time when the country is
more polarized than basically any point since the civil war.

A titan of conservative legal rhetoric, Scalia was a legal founding member
of the high court`s four-member conservative bloc, often joined in the
majority by Justice Anthony Kennedy. Replacing him with a justice who
would vote more often with say Ginsburg, Kagan, Bryer and Sotomayor would
tip the balance of the court away from conservatives. As of now, Scalia`s
absence leaves the fate of several profoundly consequential cases now
before the court, unsettled.

It did not take long after the news broke on Saturday of Scalia`s death for
it to be fully subsumed by party politics. Only about an hour after his
passing was confirmed, Republican Senate majority leader fired a shot
across President Obama`s bow, calling for the process of replacing Scalia
to be suspended until after the next president is elected, saying in a
statement, quote, “the American people should have a voice in the selection
of their next Supreme Court justice.”

Soon, the rest of the conference was falling in line with that maximalist
pledge. Only a couple hours after telling “The Des Moines Register”,
quote, “I wouldn`t make in prognostication on anything about the future
because there`s so many balls in the air when those things are considered.”

Senate Judiciary Chair Chuck Grassley, the man in charge of judicial
confirmation hearings released a statement echoing the majority leader,
citing, quote, “Standard practice over the last nearly 80 years that
Supreme Court nominees are not nominated and confirmed during a
presidential election court.” A questionable assertion.

According to “The New York Times”, six Supreme Court nominees have been
confirmed in an election year since 1900, at least two were for seats that
became vacant during the previous calendar year.

Now, McConnell`s move has even gotten the support of some purple state
Senate Republicans who are up for reelection next fall in a presidential
year. That includes Rob Portman of Ohio, Kelly Ayotte of New Hampshire,
and Ron Johnson of Wisconsin, who, of course, have the most to lose
politically as a result of Republican obstruction.

In a last-minute address to the nation Saturday night, President Obama
affirmed that he plans to fulfill his constitutional obligations by naming
a Scalia successor.

Today, the White House said the president has begun discussions about
identifying a nominee, all of which ensures that for the foreseeable
future, this fight will remain in the news and at the center of the
presidential campaign.

On the trail today, Hillary Clinton kicked off a rally in Nevada by calling
on the Senate to do its duty. While Bernie Sanders addressed the subject
near the end of his stump speech on the stop in Michigan.

(BEGIN VIDEO CLIP)

CLINTON: If the Republicans in the Senate act as though they have no
responsibility to work with the president to fill that vacant position
because they want to wait to see how the election comes out, the people of
this country should send a clear message, that is not the way our
Constitution works.

SEN. BERNIE SANDERS (I-VT), PRESIDENTIAL CANDIDATE: You talk about the
Constitution a whole lot. Well, how about obeying the Constitution, and
start holding hearings when President Obama nominates the next Supreme
Court justice.

(END VIDEO CLIP)

HAYES: While both candidates agree on the nomination process, however, the
Supreme Court is becoming an issue in the primary, with Sanders advisor Tad
Devine telling “The New York Times”, quote, “Clinton cannot be trusted to
appoint someone to the Supreme Court who will take the issue of campaign
finance seriously.”

In an interview tonight on HARDBALL, Clinton was asked if she`d have a
litmus test for justices on repealing Citizens United as Sanders says he
does.

(BEGIN VIDEO CLIP)

CLINTON: Yes, look, I will be talking in detail with anybody that I
appoint. It`s not just that decision. I have a whole range of decisions
that I think are really important. So, yes, it would factor very much into
who I nominated.

(END VIDEO CLIP)

HAYES: On the Republican side, Ted Cruz seems to decide he`s got to most
to gain from a Supreme Court battle, himself of course a former Supreme
Court clerk, vowing to filibuster any Obama nominee regardless of their
qualification, and somewhat apocalyptic new ad highlighting what he
believes is at stake and hitting his toughest competition in the South
Carolina primary.

(BEGIN VIDEO CLIP)

AD NARRATOR: Life, marriage, religious liberty, the Second Amendment.
We`re just one Supreme Court justice away from losing them all.

TIM RUSSERT, MEET THE PRESS: Would President Trump ban partial birth
abortion?

TRUMP: I`m very pro-choice.

RUSSERT: But you would not ban it?

TRUMP: No.

RUSSERT: Or ban partial birth abortion?

TRUMP: No. I would – I am pro-choice in every respect.

AD NARRATOR: We cannot trust Donald Trump with these serious decisions.

(END VIDEO CLIP)

HAYES: Republicans have made sure to cloak their maneuvering in eerie
allusions to democratic principles, ensuring the public gets to weigh in on
choosing the next Supreme Court justice, though, that`s arguably what the
public did when they elected Barack Obama to a second four-year term.

But two of the party`s candidates for president have been a little too
honest about what`s really behind this – pure power politics.

(BEGIN VIDEO CLIP)

JEB BUSH: It should not be an appointment based on the record of President
Obama`s selection of judges. They are way out of mainstream. And this
should be an important point we have in the election.

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: I don`t trust Barack
Obama on the appointment of Supreme Court justices. We cannot have Scalia
replaced by someone like the nominees he`s put there in the past.

We`re going to have an election. There`s going to be a new president. I
believe it will be me. We`re going to look for someone that most resembles
Scalia to replace him.

(END VIDEO CLIP)

HAYES: Joining me now, former Ohio Governor Ted Strickland, now a
Democratic candidate for Senate challenging Republican incumbent Rob
Portman.

And, Mr. Strickland, first I want to get your reaction. Rob Portman has
said, along with Kelly Ayotte and Ron Johnson and others that he believes
that there should be no nominee, no hearings, no nothing. Everything
frozen in place until January. What`s your response to that?

TED STRICKLAND (D), FORMER OHIO GOVERNOR: Well, my response is that
Senator Rob Portman is willing to put the wishes of his party`s leadership
above the Constitution and his responsibility as an Ohio senator to carry
out those duties. You know, the president nominates, the Senate confirms.

And Senator Portman and all the other Republicans in that Senate have a
responsibility to take the president`s nominee, to consider it carefully
and to make a decision and to vote yes to confirm or no to reject. But
they cannot have it the way they want it. And that`s just to say that the
president has no right to make a nomination.

I think – I think this is an example of where Senator Portman and many
other senators are putting the allegiance to their party above their
responsibilities under the Constitution to carry out their duties.

And I will hold Senator Portman – let me tell you, here in Ohio, Senator
Portman will be held accountable for this kind of obstruction. We`re sick
and tired of it in Ohio and across the country. We want this government to
function.

And the president has every right, in fact, he has a responsibility under
the Constitution to put forth a qualified nominee and the Senate has a
responsibility to carefully and thoughtfully consider the qualifications
and to make a decision to either confirm or to reject. But they simply
have no right to tell the president that he can`t put forth a nominee and
to indicate they will not take indication.

HAYES: The constitutional phrase I hear is advice and consent from the
Senate, of course, to presidential nominees.

STRICKLAND: That`s right.

HAYES: I mean, what about the advice that the Senate majority is giving is
don`t nominate anyone. We won`t consent.

(LAUGHTER)

STRICKLAND: Well, I think that`s rather silly. What we`re seeing here,
Steve, is just crass, partisan political maneuvering, and they want – you
know, these Republicans, they don`t want to accept the fact that Barack
Obama was elected twice, that he`s going to be president until January 20th
of next year. And while he`s the president, he has the right and the
responsibility to put forth a qualified nominee for the Supreme Court.

We cannot leave this court with a vacancy for the next year and a half or
longer. So, I think the president is doing the right thing.

And I would call upon Senator Portman and every other senator to do their
duty and to allow the president to put forth the nominee and to have them
to carefully consider the qualifications. I`m not telling Senator Portman
or anyone else how they have to vote on that nominee, but they`ve got a
responsibility to accept it from the president and to carefully consider
the qualifications of that nominee. If they don`t do it, then, in my
judgment, they are rejecting their constitutional responsibilities.

HAYES: All right. Former Governor Ted Strickland, running for Senate in
Ohio against Rob Portman, with strong words – thank you, very much,
Governor.

STRICKLAND: Thank you so much.

HAYES: All right. Joining me now, Jess McIntosh. She`s spokesperson for
Emily`s List, a pro-choice PAC working to elect female candidates. They
have endorsed Hillary Clinton.

And Michael Steele, former chairman of the RNC and a MSNBC political
analyst.

Michael, let me start with you. Were you surprised by the immediate move
towards publicly announcing essentially a categorical bar on the process as
opposed to just saying, we welcome the president for filling his
constitutional duty, we`ll do our constitutional duty all the while never
intended to confirm anyone the president nominates?

MICHAEL STEELE, MSNBC POLITICAL ANALYST: I have to admit I was surprised
and very disappointed. And in fact, more disappointed than anything else,
because literally within the hour of receiving the word on Scalia`s death,
this was the political posturing by my party. And I felt offended on
behalf of the Scalia family. I thought, you know, due respect and
deference should have been given to his memory, to leave the politics aside
for at least 12 hours, 24 hours, to give us all a chance to soak that in
and to give respect to the man`s memory and his legacy.

But then to go headlong into this space, had to problems for me. The first
was, a lack of respect for the man`s memory and two number, bad political
maneuvering, because the president is the one who kickstarts this process,
not the Senate. And he is the one who jump-starts it by saying I`m going
to put forth a nominee and then the Senate can do what it wants to do. It
can either say, “Mr. President, thank you, but no thank you”, or we`ll take
that under advisement and get back to you.

I think we put guys like Portman and others in a very precarious box
because now they`re going to defend against the Stricklands of the world
who will be hammering them on the process, not on the substance of the
nominee.

HAYES: OK. This is what I found so fascinating. It wasn`t just McConnell
making that move. And I think McConnell makes that move frankly because he
knows the base doesn`t trust him to bait and switch.

STEELE: Right.

JESS MCINTOSH, EMILY`S LIST: Yes.

STEELE: Right? So, the base thinks they get sold out. So, he doesn`t
have the maneuver room to say we welcome the president`s nominee and like
behind closed doors, like, obviously, we`re not confirming any of these
people, right?

So, he`s got to put that statement out essentially to call the base. Now,
the problem is what Michael just said, Ayotte in New Hampshire, won by
Barack Obama, Ohio, Portman, Nevada has got an open seat. Pat Toomey in
Pennsylvania, right? All these people.

How do you think the politics play there?

MCINTOSH: I think for a long time Republicans have been playing this game
where they intentionally gum up the works and they slow down the process
and then they blame Washington and they blame politics and Democrats and
they blame the process. America buys that.

They look at this dysfunctional Washington machine and they say –

HAYES: Gridlock.

MCINTOSH: Gridlock. This I think cuts the wrong way for them. It`s so
very clearly one party – you had Donald Trump on the debate literally
standing up and saying, our strategy is delay, delay, delay.

The American people don`t want that. It`s very, very obvious there`s a
single party doing that and a party trying to move a little bit forward.

HAYES: OK. So, here`s my theory, Michael. Tell me if this is crazy. So,
one way to look at it is the blanket categorical announcement that we`re
not even going to deal with it. By the way, I love that the people say the
president has the right to nominate someone.

STEELE: Right.

HAYES: it`s like it`s a free country, dude. If you feel strongly about
it, like knock yourself out. No, he has the obligation.

But one way of viewing this is, it`s actually easier politically for the
process not to start. That once there`s a nominee, and once there`s
hearing, there`s going to be more pressure on the Senate to cave than if
you just stop the whole thing from the get-go. What do you think of that?

STEELE: Well, I think that`s fine until the president acts.

HAYES: Right.

STEELE: The process starts when the president acts. I mean, hello, can we
get this right? It doesn`t start because McConnell blows the whistle and
says game on. It starts when the president says here is my nominee to the
Supreme Court, give me an up or down vote.

And so, again, putting – you know, we were over our skis a bit. I think
it could potentially cause problems for some of our senatorial candidates
in blue states. I think it could cause problems for our presidential
nominee in a broader context of the election.

But let`s keep in mind. This is not unusual. We saw this play out in 2007
with Chuck Schumer, you know, very much saying they were not going to move
forward. There was no need to move forward on Republican – on George
Bush`s last nominee to the bench.

So, this is not unfamiliar to either party.

HAYES: Yes.

STEELE: The problem is the timing and the distance between now and when
the president leaves office.

HAYES: Yes, there`s been – let me just sort of jump in as referee.
There`s been a lot of sort of back and forth accusations and hypocrisies.
So, let me stipulate two things.

One is, people pointing to process or always hypocritical, right? So,
everyone flips on the process question of whether things should move
expeditiously or whether they should (INAUDIBLE). It`s all about the
actual substance of who will be on the court. So, ignore all process
arguments.

That said, you know, the closest analogue we have is a year and a half out,
the most recent is the year and a half, Thurgood Marshal retires. Clarence
Thomas does end up getting confirmed with a few Democratic votes.

Do you think – how do you think this plays among the Democratic base in
terms of heightening focus?

MCINTOSH: There is actually nothing more motivating for the Democratic
base in terms of flipping the Senate and taking the Senate back and
retaining the White House than the Supreme Court. Our base understands –

HAYES: Do you think that`s true?

(CROSSTALK)

HAYES: – this crazy asymmetry with the right.

STEELE: No, she`s right.

MCINTOSH: I think it`s absolutely true. Every research I`ve seen and
Emily`s List, everything we have looked into is a huge motivating factor.
And I think we can have the process argument all in one. The reason why
it`s such a motivating factor is because it`s a substantive argument.

The Democratic base likes a substantive argument. So, when we talk about
what the Supreme Court means to you and your life and the future
generations, I mean, that is so much more compelling than a piece of
legislation might be moving or not moving or getting gridlocked up in
Washington. This is real. Everyone sees that happened.

HAYES: The thing I keep about is you have the abortion case coming out of
Texas. That will be decided by a four-four court.

MCINTOSH: Right.

HAYES: If they find four-four, if it ties, it reverts back to the holding
of Texas. It means all those clinics are shut down and the law stands.
Democrats can in the case go to their base and say, literally Roe, in the
most literal sense of our lifetime is on the ballot, you go in November,
you get to choose the tie breaker. It`s probably a powerful argument in
both directions.

But, Michael, I think it`s – what do you think how that plays on the
Republican side?

STEELE: I think Jess is absolutely right. I think this is a ready-made
card for the Democrats to play this fall. I think the TV commercials, all
that kind of sets up nicely for them. That`s the politics of it.

But this does cut the other way for conservatives as well. You`ve got the
Second Amendment. You`ve got Hobby Lobby. You`ve got a number of cases
out there that impact culturally and otherwise, what conservatives care
about.

So, this is really the crucible.

HAYES: Yes, I can`t wait we get a Bush v. Gore with a four-four court in
November. That`s going to be super exciting for the republic.

Jess McIntosh and Michael Steele, thank you both.

Still to come, the stakes of a vacancy on the Supreme Court during a turn
that was stacked with hugely important cases. We`ll look at the impact on
those.

But, first, here comes welcome. Bush 43 makes his first appearance on the
campaign trail. Will it help or hurt the chances of a Bush 45?

Plus, Donald Trump press conference turns into a full out bludgeoning of
Ted Cruz`s character. We`ll have Cruz response.

Those stories and more, ahead.

(BEGIN VIDEO CLIP)

TRUMP: I`ve never seen anything that lied as much as Ted Cruz. He goes
around saying he`s a Christian. I don`t know. You`re going to have to
really study that.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

HAYES: On Saturday night, we watched what I think is fair to say, the most
flat-out bananas GOP debate we`ve seen so far. And that`s saying
something. In front of an audience who`s ruckus reactions wouldn`t have
been out of place at Wrestlemania. The candidates hurled some vicious
insults at each other, and Donald Trump attempted to slaughter, live on
national TV, one of most sacred cows of the modern Republican Party.

(BEGIN VIDEO CLIP)

TRUMP: George Bush made a mistake. We can make mistakes. That one was a
beauty.

We should have never been in Iraq. We have destabilized the Middle East.
I want to tell you, they lied. They said there were weapons of mass
destruction. There were none and they knew there were none. There were no
weapons of mass destruction.

World Trade Center came down.

(CROSSTALK)

JEB BUSH: He had the gall to go after my mother.

(BOOS)

JEB BUSH: Let me finish. He had the gall to go after my mother.

TRUMP: That`s not keeping us safe.

(END VIDEO CLIP)

HAYES: That moment when Trump chose to cross the 9/11 line and blame
George W. Bush for not preventing the September 11 terror attacks, it was
seen by many observers as potentially disastrous. “If it doesn`t back
fire,” one GOP strategist told “Politico”, “then will be official, nothing
can stop him.”

Trump made the comments in South Carolina, the next GOP primary state,
which has a huge military presence, and where George W. Bush appears at
least according to the data we have to be really popular within his party.
Bush got a crucial win in the South Carolina GOP primary back in 2000. In
one recent poll found the former president had 84 percent approval among
South Carolina Republicans.

Today, in fact, George W. Bush touched down in South Carolina to campaign
for his brother Jeb, the first time in a long time that he`s been on a
trail. And right around the time, right has George W. Bush was landing,
Trump was holding a news conference where he was repeatedly pressed on his
claim that former president deserved some of the blame for 9/11.

What Trump had to say, trust me you don`t want to miss it, is next.

(COMMERCIAL BREAK)

HAYES: Today, we saw something we rarely seen since George W. Bush boarded
that helicopter and left the White House back on January 20th, 2009. A
public appearance by the former president who showed up in South Carolina
to campaign for his brother Jeb ahead of Saturday`s GOP primary and take
some apparent, not very thinly veiled shots at front-runner and the
tormenter of his brother, Donald Trump.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, FORMER PRESIDENT: Strength is not empty rhetoric. It is
not bluster. It is not theatrics. Real strength, strength of purpose
comes from integrity and character. In my experience, the strongest person
usually isn`t the loudest one in the room.

(END VIDEO CLIP)

HAYES: Since George W. Bush left office, Republicans have not spent a lot
of time reckoning with his administration`s record on say fighting
terrorism. The refrain has been simply that Bush, quote, “kept us safe
after 9/11”.

But on Saturday, the GOP debate, Trump took direct aim at that claim, and
today, he took his argument even further.

(BEGIN VIDEO CLIP)

TRUMP: I`ve heard for years, he kept the country safe after 9/11. What
does that mean after? What about during 9/11? I was there. I lost a lot
of friends that were killed in that building.

The worst attack ever in this country, it was during his presidency. I
mean, we had the worst attack ever. After that we did OK. That`s meaning
the team scored 19 runs in first inning, but after that we played well. I
don`t think so.

(END VIDEO CLIP)

HAYES: For nearly eight years, it`s been an article of faith among
Republicans that George W. Bush does not deserve any blame for September 11
attacks despite he`s having been in office nine months and his
administration having received repeated warnings, which have been
documented about al Qaeda plots.

It`s an argument Marco Rubio made in response to Trump at Saturday`s
debate.

(BEGIN VIDEO CLIP)

SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: The World Trade Center
came down because Bill Clinton didn`t kill bin Laden when he had the chance
to kill him.

(END VIDEO CLIP)

HAYES: Trump is refusing to play along with the GOP`s convenient reading
of history.

(BEGIN VIDEO CLIP)

TRUMP: It was tremendous information and the CIA and various other
agencies were not talking and they were not getting along and there were a
lot of personality conflicts and they all hated each other and we ended up
with the World Trade Center, OK?

They had tremendous problems getting along together. That`s management.
Because if they did, they knew some bad things were going to happen. They
could have stopped it.

(END VIDEO CLIP)

HAYES: Trump even suggested that George W. Bush`s decision is bad news for
the ex-president`s legacy.

(BEGIN VIDEO CLIP)

TRUMP: If the ex-president is campaigning for his brother, I think he`s
probably open to great scrutiny, maybe things that haven`t been thought of
in the past. I think it would be better for him if he stayed out.

(END VIDEO CLIP)

HAYES: Joining me now from out of the campaign trail, he`s currently in
Reno, is Dave Weigel, national political correspondent for “The Washington
Post”, who wrote a piece about the Bush legacy.

I have no idea anymore what to make of any of this in terms of trying to
model the mind of the Republican voter. So, this happened on Saturday.
Everyone flipped out.

Then today, Trump goes harder at it. You`ve got everyone sort of on the
right and Republican saying he sounds like Michael Moore. He sounds like
Michael Moore. I honestly don`t know.

What is your view of how this plays?

DAVE WEIGEL, THE WASHINGTON POST: What happened immediately on Saturday
was a kind of bandwagon effect, which people in the room were booing Donald
Trump for saying that. People in the room, as he was pointing out
correctly, were the sort of people who can`t see any fault in George W.
Bush.

HAYES: Right.

WEIGEL: Not just Republicans, but Republican donors, former ambassadors,
people who have a lot riding on the Bush administration and sort of a
retelling of history. And so, one of the questions I like to throw to
Republican voters on the trail is, should we have gone into Iraq? Very
infrequently can they say, yes, we should have.

What`s been happening over the last few years was an argument, well, maybe
we shouldn`t have, but we were in a good place until Barack Obama came
along. And that is what I saw is the risk of what Trump is doing was
stopping that rethink in its tracks.

HAYES: There`s a way in which the phenomenon of Trump has been tied to
Bush. I think there`s an argument to be made, I think David Frum is in
this argument. A guy named Leon Donovan (ph), who I follow in Twitter,
he`s a very smart sort of Republican operative. That basically Trump
emerged as the anti-Bush that basically Trump`s rise, Trump support started
off as reflective, anti-Jeb, anti-Republican posture, that basically the
Republican Party never dealt with the failures of the Bush administration
or the anger conservatives had for him. And as soon as they confronted
with Jeb, they had this kind of Freudian reaction that pushed them into the
arms of Trump.

What do you think of that?

WEIGEL: Well, they did and they didn`t. The branding of the Republican
Party in 2009, 2010, was that this was no longer a George W. Bush party.
This was a Tea Party that reckoned with the mistakes he made.

And you saw his sort of beachhead of libertarianism in the Republican
Party. You saw people that didn`t tie themselves to Bush. One of my
favorite pieces of journalism from last year actually is when Chris Moody
from CNN asked questions of each Republican running for president in an
event in South Carolina in Greenville where this debate was, and said, who
is the best living president?

And they couldn`t say George W. Bush. But they were trying to have it both
ways and saying, boy, we miss the time before Barack Obama. We miss when
this country used to be more successful in winning wars. They couldn`t
quite come around to defend him.

HAYES: Right.

WEIGEL: It reminded of what`s happened a few times in our history, many
times in our history, where we find ways to rationalize mistakes that
former presidents had made. I think it was going pretty well until – this
might be watershed moment, it might not. But certainly, this argument is
no longer universal because of what Donald Trump did.

HAYES: Yes, I should say that the PPP has a poll and a graphic for it.
But I`m just saying here on Twitter, PPP has a poll out post-debate. Trump
is up five. He`s got 30 plus points over Rubio and Cruz.

I mean, if you`re a Republican and you thought professional political
class, you thought I`ve got a read on where Republican voters are
ideologically, Donald Trump just screams in your face, “You`re fired” every
chance you get.

Dave Weigel, thank you very much.

WEIGEL: Thank you.

HAYES: Still to come, the Republican fight is getting ugly in South
Carolina. The latest attacks, threats and name calling ahead.

(BEGIN VIDEO CLIP)

TRUMP: Cruz just said, he said – I think he`s an unstable person. I
really do. He just said Donald Trump does not like the second amendment.
I said the second amendment is my whole thing.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BILL CLINTON, 42ND PRESIDENT OF THE UNITED STATES: When she was first lady
and we tried to reform health care, but we did not have 60 votes in the
Senate. And when you hear all this talk, the definition of a revolution is
having 60 votes in the Senate and getting rid of the Republican House.

(END VIDEO CLIP)

HAYES: Bill Clinton countering one Bernie Sanders signature campaign lines
at an event for his wife in Florida today.

Clinton has lately become a fixture on the trail where he`s occasionally
deployed to criticize his wife`s opponents.

On Friday night, we reported on comments he made during a stop in Memphis,
Tennessee and we cited him as saying about Hillary Clinton and President
Obama, quote, she`s always making something good happen. She`s the best
change maker I`ve ever known.

A lot of people say, oh well, you don`t understand. It`s different now.
It`s rigged. Yeah, it`s rigged because you don`t have a president who is a
change maker.

Now, a number of people pointed out – quite a few actually, and rightly –
that Clinton`s full remarks changed the context of that point and that he
actually went on to defend President Obama against his critics. So, here
it is in full.

(BEGIN VIDEO CLIP)

BILL CLINTON: She`s always making something good happen. She`s the best
change maker I`ve ever known. A lot of people say, oh well, you don`t
understand it`s different now. It`s rigged. Yeah, it`s rigged because you
don`t have a president who is change maker who has a congress who will work
with them.

But the president has done a better job than he has gotten credit for, and
don`t you forget it. Don`t you forget it.

(APPLAUSE)

BILL CLINTON: Don`t you forget it.

Look, don`t you forget it. Let me just tell you, I`ve been there. And we
shared the same gift. We only had a Democratic congress for two years and
then we lost it. There`s some of the loudest voice in our party say –
it`s unbelievable – say well, the only reason we had it for two years is
that President Obama wasn`t liberal enough. Is there one soul in this
crowd that believes that?

(END VIDEO CLIP)

HAYES: Now, we did not characterize Clinton as trashing the president or
slamming him as some others did. We said he went off message, which is
arguably true. But here`s the important thing. In cutting off that clip
in the editing, we didn`t allow you the chance to make that judgment for
yourselves in the full light of context. We shouldn`t have done that.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: This guy, Ted Cruz is the most dishonest guy I think I`ve ever met
in politics. You`re willing to lie about anything and then you hold up a
bible. It`s no good. To me, it`s no good. I hope you can tell all of
your friends what dishonest people these politicians are. That they are
liars, they`re really liars, especially Ted Cruz. He`s an absolute
disgusting liar.

(END VIDEO CLIP)

HAYES: According to Donald Trump, Senator Ted Cruz is the single biggest
vessel of misinformation in the race.

Since the debate Saturday night, according our informal count Donald Trump
has called Ted Cruz dishonest or a liar 52 times. He has accused the Cruz
campaign
of orchestrating robo calls in South Carolina that reportedly made negative
and unfair statements about Rubio and Trump, Cruz said, quote, we had
nothing to do with them.

Trump has also accused Cruz of lying about his positions. And Cruz has
claimed that if elected president, Trump would appoint, quote, liberal
judges to the Supreme Court.

Cruz was asked earlier today about things getting personal.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ, (R) TEXAS: Two of the candidates in this race, Donald Trump
and Marco Rubio, both have the very same pattern. Whenever anyone points
out their
record, they simply start screaming liar, liar, liar.

So, I will continue focus on substance and truth and let other candidates
focus on the insults and attacks.

(END VIDEO CLIP)

HAYES: A few hours after Cruz made that statement, Donald Trump delivered
one of the most direct character assassinations of a presidential candidate
that I`ve ever seen.

(BEGIN VIDEO CLIP)

TRUMP: I have never ever met a person that lies more than Ted Cruz. And
he goes around saying he`s a Christian. I don`t know. You`ve going to
have to really study that.

But he`s a liar. Even Jeb won`t go and say like, you know, boom. He`s,
Donald Trump is like against the second amendment. What Cruz says is
incredible. He`s a lying guy. A really lying guy. Some people
misrepresent, this guy is just a plain out liar.

My opponents lie, especially Cruz. I mean, Cruz – as I said, he`s the
single worth liar I`ve ever seen. He is a very unstable person, that`s
just my opinion.

(END VIDEO CLIP)

HAYES: Just his opinion

Trump went on to say that if Ted Cruz didn`t apologize and retract his,
quote, lies, he would sue him. Quote, “relative to the fact that he was
born in Canada, therefore cannot be president.”

(BEGIN VIDEO CLIP)

TRUMP: We will bring a lawsuit if he doesn`t straighten his act out. But
if Cruz ever got the nomination, the Democrats are going to file the
lawsuit. So, in a sense I`m doing him a favor because I`m filing it early.
If I file it, I`m filing it early.

(END VIDEO CLIP)

HAYES: Here is how Cruz, who was also campaigning in South Carolina
responded.

(BEGIN VIDEO CLIP)

CRUZ: Today, Donald Trump held a press conference where he apparently lost
it. Have you noticed how rattled Donald gets when his numbers start going
down? He gets very, very upset.

(END VIDEO CLIP)

HAYES: Joining me now from South Carolina is NBC host and political
correspondent Steve Kornacki. And Steve, I`ve got to mention this poll, do
we have that graphic of showing what the PPP numbers are, the most recent
polling that we have. The numbers don`t appear to be going down. Just for
the record, since the debate, Donald Trump at 35 percent, Marco Rubio, Ted
Cruz tied at 18, then Kasich, Jeb Bush and Ben Carson.

What do you make of this fullscale character assault on Ted Cruz by Donald
Trump?

STEVE KORNACKI, NBC CORREPSONDENT: I mean, those numbers – and again,
look, we`ll see if there`s polls in the next couple of days that back that
up, but those numbers suggest that this Trump strategy it`s working down
here. And it`s been working in general. I mean, he came to this state as
the clear frontrunner.

The margin you`re seeing on the screen, that`s the margin we were seeing in
the polling before Saturday`s debate, before the South Carolina campaign
really started to heat up.

And I`m thinking back four years ago, you remember the debates really moved
things four years ago. Newt Gingrich had those back to back debates. He
went after the media. He went after the questions about the open marriage.
You started seeing movement in the polls down here right away. He
basically gained 30 points in five days.

So here we are a couple days out. If Trump isn`t slipping at all after
that performance on Saturday night, then I think he might be on more solid
ground than we might instinctively think in launching this kind of attack
against Ted Cruz.

HAYES: Well, it`s funny, you mentioned Newt Gingrich. And the thing I
remember about Newt Gingrich is coming out of South Carolina, it was in
South
Carolina where he hit Mitt Romney from the left on Bain and private equity.
These were – he talked about predator capitalism at some point. He was
basically saying this is – from the left this is a completely bankrupt
model of financial capitalism to put people out of business. And he went
onto win South Carolina.

And to me that was indicator that there is some recitivity (ph) there for
stuff you don`t find on the Wall Street Journal editorial page, and Trump
is testing that in real-time.

KORNACKI: I think that has been one of the big stories of the Trump
campaign.

I think we might be seeing that with – I know you talked about it before,
but we might be seeing that with the attacks on the Iraq war and on George
W. Bush. I mean, I think there`s just been this knee jerk assumption on
the part of Republican politicians that Republican voters will not stomach
any questioning of George W. Bush, any questioning of Iraq, and I think a
lot of Republican voters this is reflected in the polls, they only ever
heard the attacks on George W. Bush and heard the attacks on Iraq coming
from liberal voices, coming from Democratic voices.

Now you have a voice that they trust within their party, within their tribe
saying this stuff. And I think they might just give up George W. Bush and
go with Trump.

HAYES: Trump, again, relayed his sort of threat. You know, he had this
big press conference, right, where he was making noise about an independent
run, had a press conference, signed a pledge. I was there. The first
question I asked at that press conference is why should anyone believe you
would hold to this pledge, which he basically didn`t answer.

Here he is today, threatening that he might walk. Take a listen.

(BEIGN VIDEO CLIP)

TRUMP: The RNC does a terrible job, a terrible job. And just remember
what I said, remember in this room, I signed a pledge, but it`s a double-
edged pledge. And as far as I`m concerned, they`re in default of their
pledge.

(END VIDEO CLIP)

HAYES: At this point, I think odds are above more likely than not that he
is on the ballot in the fall one way or another, whether he wins this
nomination. Because I just can`t see him going back to like developing
golf courses after this if he doesn`t win the primary.

KORNACKI: Well, the other thing, too, is I don`t think what you`re showing
there, the idea of dangling this prospect of a third party campaign.
Ordinarily you would say this is not a good tactic for somebody trying to
win a Republican primary, somebody who is ahead. You don`t start talking
about that. It`s only going to turn voters away. But I think what Trump
is benefiting from here is how
many Republican voters do not care right now about the basic proposition of
the Republican Party itself winning.

And I mean, traditionally the role of South Carolina has been it saved
George Bush senior. It saved George W. Bush, Bob Dole. The establishment
candidate. Well, something changed in the last five years. That`s now
Newt Gingrich won this thing in 2012.

HAYES: Yeah. And if Trump wins in South Carolina, your odds – the odd of
stomping him in the Republican primary diminish considerably. Steve
Kornacki, thank you for joining us.

Still to come, with the Supreme Court nomination battle that could last a
year, what happens when the case as s yet to be heard. I`ll explain ahead.

(COMMERCIAL BREAK)

HAYES: There is a hugely important ironclad editorial policy here at All
In that on occasions when my children visit the set they get to play a
piece of video of their choosing on air.

So without further ado behold, a baby gorilla. Yep. This is from my
daughter Ryan who rode the subway into the office with me today and is
watching right now. And because she joined us in the office today, Ryan
gets to see a baby gorilla on television.

But wait, there`s more. This is a baby tiger. Because Ryan is a good and
thoughtful sister who is thinking of her little brother David even though
he couldn`t be in the office today. Here is some video of the baby tiger
for David from Ryan.

(COMMERCIAL BREAK)

HAYES: In the hours after reports of Justice Antonin Scalia`s death,
tributes poured in from across the political spectrum. As a legal writer,
Scalia was celebrate by conservatives for the substance of his opinions and
celebrated by others for the fierceness of his intellect and his always
entertaining, yet sometimes infuriating writing style.

One of the most touching tributes came from his best friend on the court,
Justice Ruth Bader Ginsburg. In a statement which reads in part, “from our
years together at the D.C. circuit we were best buddies. We disagreed now
and then, but
when I wrote for the court and received a Scalia dissent, the opinion
ultimately that was released was notably better than my initial
circulation.

Justice Scalia once described the peak of his days on the bench an evening
at the opera ball hen he joined two Washington National opera tenors at the
piano for a medley of songs. He called it the famous three tenors
performance. He was indeed a magnificent performer. It was my great, good
fortune to have known him as a working colleague and treasured friend.”

With Scalia`s the court is now compromised of four conservative leaning
justices, four liberal leanings justices, which of course means the
possibility of deadlock for cases. And there`s a full docket of important
cases yet to be decided.

Given the obstruction Republicans are signaling for confirmation of a new
justice this year, the eight justice court could remain that way for quite
some time.

Unless of course President Obama nominates someone who is so compelling
that obstruction becomes untenable.

I`ll speak with a former Scalia clerk about who might be on that list after
the break.

(COMMERCIAL BREAK)

HAYES: Joining me now, Sherrilyn Ifill, president and director counsel of
the NAACP Legal Defense Fund and former presidential candidate Lawrence
Lessig, Harvard law school professor and former clerk for Justice Antonin
Scalia.

And Larry, let me start with you. I know you clerked for Justice Scalia.
There was a period of time when Justice Scalia had this position that he
would sort of hire what he even called a token liberal among his clerks.
What were your recollections of the man, your relationship? What was it
like clerking for him?

LAWRENCE LESSIG, HARVARD LAW: He was an incredible man. I mean, the
striking thing about him for was he was an originalist who was a
conservative. And the real test was when those two things conflicted,
which they did probably five times when I clerked for him in the one year
that I was there. And the test was would he follow his originalism or he
follow what it was to be a conservative?
And impressive to me was that every single time, not necessarily willingly
or excited – he wasn`t necessarily excited about it, but every single time
he came around to what his originalism told him he had to do even when that
was a liberal result. And that was a mark of integrity in a place where
you can get away with anything. You could reason yourself to any
conclusion if that`s what you wanted.

HAYES: Yeah, he once joked about this. He did have a sort of, his record
particularly on criminal defense where the bill of rights particularly is
quite explicit was much more liberal than you would anticipate. He once
made a joke about I can`t do all the terrible right-wing things I`d like to
do to criminal defendants because the constitution bars it.

Sherilyn, let me ask you about this. So, you`ve got a 4-4 court. I think
the natural question everyone says is, well, what happens if you get a 4-4
tie. Walk us through what happens when you get a 4-4 tie.

SHERRILYN IFILL, PRES. NAACP NEGAL DEFENSE FUND: if you get a 4-4 tie then
the decision below is essentially affirmed.

I mean, a court has the ability to order reargument in some cases if they
choose to do so. But otherwise, the decision of the lower court at the
appellate court below will stand.

OBAMA: So, that means the winner, the person that won that case in lower
court – so in the case of Texas, the law that has put tons of abortion
clinics out and sort of challenges Roe in many ways, that law has been was
upheld, so if it were to go to court and be deadlocked at 4-4…

IFILL: That law goes forward.

So, you know, in California where you have the public union case and the
question about whether people have to pay dues for public unions. In that
case the unions prevailed below, so if it`s 4-4, they win.

OBAMA: The unions won in California. Everyone and their mother expected
them to get creamed in the Supreme Court. I mean, they expected a 5-4
decision again them at the very least, and you`re saying.

IFILL: Well, I mean, we`ll have to see what happens. I mean, I think the
most interesting, of course, remains the affirmative action case, because
that`s a case in which Justice Kagen had already recused herself. So, it`s
the one case in which we`re already – so it`s seven.

So, now we`re talking about a case that would would have to be 4-3. And
the question is, whether, you know, in a case of this magnitude whether the
court would want to have the case decided with seven justices or would ask
for reargument. We really don`t know, and we won`t know – you know,
usually we don`t hear about some of these hot button cases until the very
end of the term. And so we`re just not going to know for a while what the
court decides to do.

HAYES: So Larry, do you have thoughts about who should replace the justice
on the court that you clerked for? Are there names that you have seen
circulating
that seem attractive to you?

OBAMA: I mean, there`s an incredible diversity of really extraordinary
people the president could pick somebody – could pick. But I would have
thought, you know, I`m not sure that I know much about politics, but I
would have thought that part of the calculation was, which person would put
the greatest pressure on the Republicans, which one would make it the most
costly for the Republicans? And, you know, I think that would be a
Hispanic appointee. So, somebody like Tino Cuellar, who is a California
Supreme Court justice right now, very young. I think he`s 43-years-old.
He would be the equivalent of a Clarence Thomas nomination in the sense
that he`s going to be there for you know generations.

That would be politically a very difficult one for the Republicans to have
to stand up against.

But there are so many relaly incredible ones for him to pick among.

HAYES: Two others I`ve heard, Sri Srinivasan who is on the D.C. circuit
court, was in the Bush administration, clerked for O`Connor and won a 97-0
Senate confirmation three years ago.

IFILL: But you know Larry points out the other pressure that here.
There`s one pressure that`s of the moment, you know, make it difficult for
the Republicans. The other pressure is this is the third appointment of
this president, of the first
African-American. There are many African-Americans who are saying you need
to nominate an African-American nominee.

There`s also the pressure that Larry just talked about, it`s several
generations. It`s 30 years. And so you can`t just think about this
Republican congress. You actually have to think about the shape of the
court for generations to come.

HAYES: Well, and I should say on that note, Loretta Lynch, the attorney
general, someone I`ve heard a lot about recently as well. We will see.
Sherrilyn Ifill, Lawrence Lessig, thank you both for your time. I really
appreciate it.

That is All In for this evening.

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

Copyright 2016 CQ-Roll Call, Inc. All materials herein are protected by
United States copyright law and may not be reproduced, distributed,
transmitted, displayed, published or broadcast without the prior written
permission of CQ-Roll Call. You may not alter or remove any trademark,
copyright or other notice from copies of the content.>