The Rachel Maddow Show, Transcript 2/15/2016

Nan Aron, Dahlia Lithwick, Kenji Yoshino

Date: February 15, 2016
Guest: Nan Aron, Dahlia Lithwick, Kenji Yoshino

CHRIS HAYES, “ALL IN” HOST: That is “ALL IN” for this evening.

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend.

HAYES: You bet.

MADDOW: And thanks to you at home for joining us this hour. New polling
just came out tonight showing that in the South Carolina presidential
primary, the Republican presidential front-runner, Donald Trump, his lead
is now up to 17 points in South Carolina, less than a week out from that

Now, the next Democratic contest is in Nevada. There`s not likely to be
any significant polling in Nevada. So, the next Democratic race for which
we`ve got a significant amount of polling is also in South Carolina. And
the latest polling out in that race tonight again from PPP, shows the
front-runner for the Democratic nomination, Hillary Clinton, also has a
very significant lead in South Carolina. Her lead in South Carolina now 21

So, let`s just for the sake of argument take kind of a 50,000-foot view
here. Since last July, there`s been dozens of polls on both the Republican
nomination and Democratic nomination for president. In all but two of the
Republican polls, dating back to last summer, in all but two of them,
Donald Trump has been in the lead on the Republican side.

On the Democratic side, in every single one of the national polls taken in
this race, actually, every single poll, not just to last summer, but going
back to the beginning of the polling in the Democratic race, there`s never
been a national poll on the Democrat side in which Hillary Clinton was not
in the lead.

So, I don`t know if Donald Trump is going to win the nomination on the
Republican side. I don`t know if Hillary Clinton is going to win the
nomination on the Democratic side. But let`s just say tonight for the sake
of argument that`s what`s going to happen. Say that Donald Trump is gong
to be the Republican nominee. Hillary Clinton is going to be the
Democratic nomine. Right now, they are the frontrunners.

We`re just saying this for the sake of argument. Don`t be mad. This is a
hypothetical, OK.

Now, let`s imagine that come November, with those two candidates each of
the nominees for each of their parties, let`s say come November, the
general election unfolds kind of like a normal general election where
states that generally vote Republican for president vote for Donald Trump,
and states that generally vote Democratic for president, vote for Hillary

So, let`s just say we can assign all of the states that are pretty clearly
red states or pretty clearly blue states, they all go to the expected
places. That leaves, by most accounts, say 10 or 11 state where is the
contest is undecided, 10 or 11 swing states. Places where you cannot
necessarily predict the outcome of the election.

In the south, again, this is all arguable, but this is the fairly consensus
view. In the south, you could say the swing states are Florida and North
Carolina and Virginia. In the middle of the country, you could say, maybe
the swing states of Pennsylvania, Ohio, Michigan, Wisconsin, maybe Iowa.
In the west, probably Colorado and Nevada. Arguably the only odd ball
swing state in the northeast is New Hampshire.

So, if you take those states, again, arguably as the swing state
battleground, in this theoretical, hypothetically match up between Donald
Trump and Hillary Clinton in the general election, let`s just take a guess
and assign the states the way we think they might go. Let`s say New
Hampshire go blue, let`s say Iowa goes blue. It`s a tight battle in
Virginia, but if Virginia goes blue, let`s say Michigan is furious about
freaking Flint, Michigan goes blue. Florida goes blue.

All other states that I just described as swing states go Republican,
Pennsylvania, Ohio, North Carolina, Wisconsin, Colorado, Nevada, let`s say
they all go Republican. You can nitpick with any of this scenario, but
this is conceivable.

And in this scenario, the Electoral College is tied between Donald Trump
and Hillary Clinton. If you don`t like that scenario in terms of how I
assigned the swing states, there`s plenty of other combinations that result
in the same outcome.

Here is a different outcome or different sort of layout for the swing
states. And this one, Florida goes Republican. Pennsylvania goes
Democratic. So, you end up with a different mix of red and blue in few
swing states, but again, here is a scenario we`re showing on the screen
right now in which the Electoral College is tied. That could happen.

Let`s say in the general election in November, the race is just as close as
it could possibly be. It doesn`t even have to be an Electoral College tie
to be like one state apart. It`s an utterly imaginable scenario.

Now imagine in one of those states, there`s some question, a real question
as to who won. It`s so tight there`s a recount. There`s a huge fight over
the recount and how it`s done before they recounted the ballots, one of
those candidates was winning. After that he recounted, another was

It`s contested as to whether or not there actually should be the recount.
And if there is going to be a recount, whether the results of the recount
are legitimate results, or if the original results were legitimate because
the recount either shouldn`t have been done or is done wrong. The stakes
couldn`t be higher in a situation like that, right?

Say conceivably if the recount goes ahead, Hillary Clinton wins that state
and wins the presidency. If the recount gets stopped, Donald Trump wins
that state and wins the presidency. In an incredibly close election, that
can happen. It`s all happening at the level of one state and it puts the
country basically into crisis because there`s this impasse as to how the
election is going to be decided.

And that`s hilarious and amazing and exciting on election night but then
you wake up the next morning and you realize there`s no pick. The country
hasn`t chosen somebody to be president and then it wears on and it`s not
just a day and a week since the election and we still don`t know who won.
And then it keeps wearing on, and it`s a month since the election and we
still don`t know who won.

We have faced this scenario before in our recent past as a country and it
was harrowing at the time.


TOM BROKAW, NBC NEWS: You cannot have this state of disarray continuing
days and weeks and months on end. People going into court, political
fights, legal fights going on across the country. Financial markets are at
risk here. National security is involved. We`ve got to do something about
how we`re going to move on to the next president.


MADDOW: It`s Tom Brokaw speaking the morning after the election in 2000,
with nobody knowing who the president will be, with a contested recount on
the horizon in Florida.

I mean, it`s still almost unbelievable in retrospect that that`s the way we
decided as a country who the next president would be after Bill Clinton,
right? The Supreme Court voted on it in a 5-4 ruling. That happened not
that long ago.

Let`s say something like that falls at our nation`s doorstop again. God
forbid, but it is not at all inconceivable.

If that happens this year in this hypothetical matchup we can imagine
between Hillary Clinton and Donald Trump, or between any other combination
of potential nominees, if we got some undecided impasse of a contested and
undecided and unclear presidential election, and to decide, it would have
to go to the United States Supreme Court, just like it did in 2000, what
would happen if that had to happen this year?

What, they deadlock 4-4? And then what would happen?

The United States Supreme Court has nine seats. It has not had a yearlong
vacancy on that seat since before the civil war. But that is what the
Republicans now say they want to do to the United States Supreme Court this

Justice Antonin Scalia was the longest serving member of this current
iteration of the Supreme Court. He`s also one of the highest profile
Supreme Court justices ever in the history of the court. His death or his
retirement was always going to be a seismic political event. The fact he
died unexpectedly in office rather than retiring is itself exceedingly
shocking at a human level, but also historically rare.

Justices just don`t die in office that often. And in terms of the nature
of his death, there had been some reports yesterday and today that he had
seen a doctor several times recently in the lead up to his death, but there
were no sustained reports that he was in seriously ill health. He was not
the oldest justice on the court by a long measure, but he passed away at a
high end hunting resort in West Texas this weekend.

He became only the second Supreme Court justice in the last 60 years to die
while in office. The last one was in 2005 when Chief Justice William
Rehnquist died. He had been suffering from thyroid cancer.

Before that, it hadn`t been anybody since 1950s. This was the front page
of “The New York Times” the day after Chief Justice Rehnquist died.

You can see the size of the headline, right? What is that, a six column
headline giving some sense of what a huge political event Chief Justice
Rehnquist death was at the time.

I mean, honestly, though, compare to this, the political impact of Justice
Rehnquist passing now seems almost quaint in retrospect. I mean, after
all, Justice Rehnquist died in 2005. It came just after George W. Bush had
been reelected. Chief Justice Rehnquist was a conservative justice due to
be replaced by another conservative justice appointed by a Republican
president who had a Republican Senate to work with.

It was a huge deal at the time, but it was nothing like what we`re about to
see happen on the issue of succeeding Justice Antonin Scalia. And because
the universe as way of being captain obvious at times like this, naturally,
this all happened on President`s Day weekend, right? And it happened on
President`s Day weekend, just in case we needed to be reminded of the
powers of the presidency, and it happened just as George W. Bush, of Bush
v. Gore found his way back onto the campaign trail for the first time since
his very consequential presidency – former President George W. Bush who
effectively was made president by Antonin Scalia.

Tonight, George W. Bush did his first overtly political event since being a
president. He spoke at a big South Carolina rally on behalf of his little
brother Jeb Bush. Jeb Bush is currently polling in single digits in South
Carolina, but he`s hoping to improve his standing.

That`s like all the stars are aligning in big blinking arrows to point out
to us that what just happened here in this issue of the future of the
Supreme Court, this is a really freaking big deal. On Election Day this
year, Justice Antonin Scalia, had he lived, he would have been 80 years.
Justice Stephen Breyer on Election Day this year will be 78 years old.
Justice Anthony Kennedy will be 80 years old. Justice Ruth Bader Ginsburg
will be 83 years old.

Because so many of the justices are of advanced age and because the older
justices are such a mixed ideological make up, we have always known that
the next election would be huge in terms of the stakes for the nation`s
Supreme Court. But nobody knew those stakes would come into such stark
relief this fast and in this sad way.

Now, in terms of what happens next, there has never really been a situation
exactly like this. But if you look at the history of the court, on
average, once a president nominated somebody to be a justice on the Supreme
Court, on average, over the course of the history of this country, it takes
25 days to either confirm that nominee, to reject that nominee or for that
person to withdraw his or her nomination. On average, it`s 25 days. The
longest it`s ever taken is 125 days.

President Obama has 342 days left in office. So, even if the Senate
decided to take as long as it ever has taken to confirm or reject his
nominee, President Obama would still have time to put forward not one but
two nominees with the remaining time he`s got in office plus some change.

If the Senate acted on President Obama`s nominee as quickly as it has done
so on average over the course of our American history, President Obama has
time to make 13 different nominations, if the Senate keeps us a pace that
is on par with the historical average.

There`s nothing about having a year left in office that precludes President
Obama from replacing Justice Scalia on the Supreme Court. But we are at a
very unusual time in American history where the Republican Party appears to
be saying basically with one voice, that they believe a new, for the first
time in American history, that there can be no confirmation of a new
Supreme Court justice in the president`s last year in office and, indeed,
that the president should not nominate a potential justice.

Since the year 1900, in a president`s last year in office, there`s been at
least eight occasions on which a presidential nominee has been put forward
or voted on for the Supreme Court, including in President Reagan`s last
year when Kennedy was confirmed unanimously by a Democratic-controlled
Senate in 1988.

But now, the Republicans have decided new rule, presidents aren`t allowed
to do that anymore. At least this president isn`t allowed to do that
anymore. This president, in particular, for the first time this American
history is not allowed as a president to fill a vacancy on the Supreme
Court, apparently, just because he`s this president.

Everybody expected that the Republican controlled Senate in 2016 or when
ever it happened would be a tough environment for any Barack Obama Supreme
Court nominee. Justice Elena Kagan only had five Republican senators vote
for her when she was confirmed. Justice Sotomayor only had nine
Republicans vote for her when she was confirmed. Nobody expected it was
going to be, you know, like it used to be back in the day when Ruth Bader
Ginsburg was confirmed 96-3, or Anthony Kennedy was confirmed unanimously
or Justice Scalia was confirmed unanimously.

Nobody expected it to be like that. But I don`t think anybody expected
within an hour of the announcement of Justice Scalia`s death, the top
Republican in the Senate would put out a statement warning that President
Obama shouldn`t even try to make a nomination.

This was the statement from justice – excuse me, from Republican Senator
Mitch McConnell. Quote, “This vacancy should not be filled until we have a
new president. The American people should have a voice in selection of
their next Supreme Court justice.”

The American people do have a voice in the selection of their next Supreme
Court justice in the presidential election of 2012, when the American
people elected Barack Obama to a second term as a president of the United
States with all the powers and responsibilities to that office, including
appointing Supreme Court justices. The American people by a 5 million vote
margin elected him to a second term which ends in January of next year, and
he`s president until then.

The Republican position in Washington is that the Supreme Court should have
a vacant seat held open until President Obama is gone from office. And
that is a position of almost unprecedented radicalism in American history
and in American politics.

You probably have heard over the last 48 hours or so, people throwing
around the idea of this being a constitutional crisis. I think that is
premature. It will no longer be premature if Senator McConnell follows
through on his threat. I mean, that said, don`t forget, Senator McConnell
is also the guy who said his top priority in the U.S. Senate was to make
Barack Obama a one term president.

So, things that Mitch McConnell says do not always turn out to be things
that Mitch McConnell does. But we were already having a remarkable year in
U.S. politics, right? I mean, we`re already having a year in which a
hypothetical about who the Republican Party might pick as their nominee has
to center on the prospect of Donald Trump as the nominee, because he really
is winning in all the polls and he just won New Hampshire and it looks like
he`s about to win South Carolina. We`re already having a year that crazy.

We are in a crazy time and in unpredictable time, in some ways an
unprecedented time. But what is being promised, what is being threatened
over the Supreme Court vacancy, this is not, you know, an election. This
is not somebody`s up and somebody`s down. This is not a policy fight.
This is not a partisan fight. This is different by an order of magnitude.
This is what is the structure of our government?

Democrats don`t like Republican presidents. Republicans do not like
Democratic presidents. We all get it.

But as a nation, we the people, get a fully functional United States
Supreme Court, without which the democratic system of our republic and our
tried and tested system of a divided government will start to rip apart at
the seams.

Republicans in Washington wish that President Obama was not elected in the
first place. They wish that he was not reelected in 2012. They wish that
he was not president today. Now, that he is president, and he remains
president, they`ve made it clear he would stop acting like it.

But wishing is one thing. You cannot insist on it. He is the president of
the United States of America. There`s only one of those. There are now
eight justices on the United States Supreme Court, which requires nine
justices. And we suddenly, in the midst of what is already a chaotic
political system had bumbled into what appears to be not yet a
constitutional crisis but right now a giant stress test for our democracy.

We haven`t had a Supreme Court seat held open for a year in this country
since the U.S. civil war. And the reason we had one held over then was
because of the U.S. civil war. What`s the excuse now?



GEORGE W. BUSH, FORMER PRESIDENT: Since, we left the White House, I`ve
been kind of quiet in public square. Eight years in the limelight was
plenty. Laura and I are really happy in what she has described as the

Now, we spent a lot of time on our ranch where we have become tree farmers.
Gives me a chance to practice my stump speech.

I`ve written two books, which surprised a lot of people, particularly up
East who didn`t think I could read, much less write.

I`ve been one to defy expectations. I`ve been misunderestimated most of my

And it`s a real shock to people, I`ve become an oil painter.


Let me assure you, I know that the signatures are worth more than the

I want to thank my brother for giving us something to do today, something


MADDOW: Former President George W. Bush speaking tonight at campaign event
in South Carolina on behalf of his younger but taller brother, Jeb Bush.
And that happened I`m convinced because the universe has a cheeky way of
reminding us of the magnitude of what lays before us as a country.

It was just over 15 years ago now that the United States Supreme Court was
called onto decide who the next president of the United States would be,
after a contested recount in the state of Florida which at the time was
governed by George W. Bush`s younger but taller brother, then-Governor Jeb

Today, Jeb Bush joined every other Republican presidential candidate and
most of the rest of the Republican Party in insisting that President Obama
should not be allowed to choose a new justice for the United States Supreme
Court to replace Justice Antonin Scalia who died unexpectedly this weekend
in Texas at the age of 79.

Joining us is somebody who for decades has been at the heart of
Washington`s battles over Supreme Court justices and other judicial
nominations, Nan Aron. She`s the founder and president of the Alliance for

Ms. Aron, thanks very much for being with us. I`m sure this is a very busy
time for you.

NAN ARON, ALLIANCE FOR JUSTIJCE PRESIDENT: Oh, thanks so much for having
me. It has been busy. Stunning developments over the weekend.

MADDOW: I expect there to be a fight in Washington over any nomination. I
knew that if President Obama had the opportunity to name another justice to
the court, there would be a fight. I did not anticipate the Republican
Party saying he`s not allowed to replace a vacant seat on the court because
it`s his last year in office.

You`re a real veteran of these fights. Did you sort of know this was

ARON: You know, I think you have to look at the previous years of this
administration and week after week, year after year, Republicans have
blocked judicial nominees. In fact, many have not permitted candidates to
get a vote even though some of those candidates were initially supported by

So, we have seen over the years, systematic obstruction, delays by
Republicans in the Senate. I`m not surprised but I continue to be very
disappointed. And I certainly think that this strategy of simply not
permitting a vote or even a hearing of a Supreme Court candidate will
backfire on the Republicans.

MADDOW: When you say it will backfire, that – it`s how I feel too, but
I`ve been thinking about how timelines tend to stretch out and morph a
little bit in presidential years.

As somebody who has worked very tightly and very closely on Supreme Court
issues over the course of several presidencies, are we seeing this as one
of the objects that`s closer in the mirror than appears? I mean, is there
any way to tell how important an issue like this is going to be come voting
time in November for example? How front of mind the Supreme Court will be
in this election and over the course of this next year? We`re still nine
months away from the election.

ARON: Well, two points. One is, I really do think the American people
will see this for what it is, simply a political stunt. And I don`t
believe they will sit back and allow one party to deny a president from
appointing someone, and I think they will insist at some point that the
Senate carry out its constitutional duty of advice and consent.

But having said that, I think the longer Republicans put up a fuss, the
more outraged people will become and the longer it takes for the seat to be
filled, I think the angrier people will get culminating in this issue being
front and center in the election this year.

This is really a defining moment for the court. One for the country and I
think Republicans will, through their pranks and politics, only aggravate
the situation and galvanize people to really pay attention to this
critically important issue, and that is the Supreme Court.

As you point out, there are – will be three other justices in their 80s by
the next presidential term, which means that this could just be the first
step of a constitutional crisis. Who knows what`s before us.

So, it certainly seems to me, and it will I think seem to most people that
the Senate ought to do its business, carry out its task and confirm what we
all expect to be a very able, stellar candidate for the Supreme Court.

MADDOW: Nan Aron, founder of the Alliance for Justice in Washington,
thanks very much, Nan. It`s nice to see you. Thanks for being here.

ARON: Thank you.

MADDOW: And now, this is the part of the story where we cue the conspiracy

Stay with us. Lots more ahead.


MADDOW: When the news broke that Justice Antonin Scalia had died in West
Texas, the paper that broke the news was “The San Antonio Express”. The
lead from the express was almost too surprising to absorb. “Associate
Justice Antonin Scalia was found dead of apparent natural causes Saturday
on a luxury resort in West Texas.”

As the news started to circulate, the national press struggled to catch up
to the San Antonio paper and confirm the story. And in fairness, this
started off as a startling story, right? It`s very rare for a Supreme
Court justice to die in office. It`s happened one other time since the

But beyond just the basic, hard to believe nature of this story, there have
also been some startling details or maybe startling lack of details about
what exactly happened here. After the staff at the ranch/hotel found
Justice Scalia`s body in his room, it then reportedly took them several
hours before anybody was able to contact a justice of the peace who would
then move ahead with a declaration of death and disposition of body. When
they finally did after several hours find a justice of the peace, it was
Presidio County Judge Cinderella Guevara. She pronounced Justice Scalia
dead over the phone without ever seeing his body.

Judge Guevara said she made her decision to pronounce him dead based on the
advice of law enforcement at the scene and based on a phone call with
Justice Scalia`s doctor.

In terms of getting a more definitive cause of the justice`s death, there
was no autopsy performed on his body. Justice Guevara said she initially
decided an autopsy should be done but then changed her mind.

The U.S. Marshal Service is responsible for the security of justices and
judges. Marshal Service is very, very good at what they do. But the
Marshal Service put out a statement saying that Justice Scalia had declined
the opportunity to have marshals with him on this trip to Texas, and so,
there were no U.S. Marshals on scene when he died.

You put those things together and one of the things that`s going to happen,
has already started happening in the immediate wake of the sad death of
Justice Scalia is that there are going to be a lot of conspiracy theories
about the justice`s death.

The mother of all conspiracists, Alex Jones, is already insisting that not
only did President Obama kill Justice Scalia, but President Obama has his
next two victims lined up already, and they have, of course, are Donald
Trump and Ron Paul. Ron Paul, really? Yes.

The other thing that`s going to happen in the immediate aftermath of the
justice`s death though is that this Supreme Court term is now turned on its
head, including what basically amounts to reversals now of some of the most
controversial policies of our time. In some cases, very serious stuff is
going to get turned around now almost instantly with Justice Scalia`s

And we got more on that very substantive story ahead. Stay with us.


MADDOW: Ten days after he left office, Virginia Republican Governor Bob
McDonnell was charged in a 14-count felony corruption indictment. He was
the first Virginia governor to ever face criminal charges and there had
been a lot of Virginia governors. Bob McDonnell was convicted in 2014.
His conviction was upheld on appeal last year. He was sentenced to federal
prison time. That sentence came down last January.

But former Virginia Governor Bob McDonnell has still yet to set foot in
prison, and that`s because the United States Supreme Court agreed to hear
his last chance Hail Mary appeal and the court said he could stay out of
prison until the Supreme Court had chance to rule on his face.

Now, nobody knows for sure, but Justice Antonin Scalia, who died
unexpectedly this weekend, was seen as one of the justices who was most
likely to have been sympathetic to Bob McDonald`s case. Now that Justice
Scalia has passed away, it`s therefore that much less likely that Governor
Bob McDonnell will find five Supreme Court justices to rule in his favor
and keep him out of prison.

With one empty seat now on the court, if the court deadlocks at 4-4 in his
case, the practical effect of that for Bob McDonnell is that the Supreme
Court will basically have had no effect on his case and the lower court
ruling will therefore stand and he will therefore have to report to prison
at long last. And that`s just one little thing.

That Bob McDonald story, that`s like maybe the least consequential case
left hanging at the court after this weekend`s sad and extraordinary news.

Joining us now is somebody I have filed on speed dial on my phone under
“Supreme Court emergency”, Dahlia Lithwick senior editor at “Slate”, one of
the best court watchers I know.

Dahlia, it`s great to see you. Thank you for being here.

DAHLIA LITHWICK, SALON: Thanks for having me.

MADDOW: I know the Bob McDonell`s case isn`t the end all/be all, but I
wanted an illustration of sort of one thing that materially is going to
change here because of what happened this weekend. Did I explain that
right about his case about what might happen there?

LITHWICK: That`s what`s going to happen. Fourth Circuit ruling stands, I
think he goes to jail.

MADDOW: Wow. What are the most consequential, active cases that are going
to be affected by Justice Scalia`s death? What are the high points we
should be looking for here?

LITHWICK: You know, this term was going to be nuts anyhow, Rachel. We had
affirmative action on the docket, we have abortion on the docket, we have
Hobby Lobby 2.0, the contraception mandate on the docket. We have voting
rights and how we draw legislative district, and then the court went and
took Obama`s immigration reform.

All of that now is every one of those is now thrown into question. And
those would have been 5-4 cases.

MADDOW: Let me ask about the immigration case, which mentioned last there.
As far as I understand this - -and again I`m not a lawyer and I don`t watch
this stuff nearly as closely as do you and other people in this business do
– but as far as I understand with that immigration case, there`s a lower
case that has said, no, President Obama can`t do what he wants to in terms
of his immigration policy. Other circuit courts, though, have not weighed
in on the issue.

LITHWICK: That`s right.

MADDOW: If other circuits did weigh in and it was – and they had a
contrary opinion about it, if they had contrary ruling about it, if the
Supreme Court was 4-4 in terms of how to address this issue, which
precedent would hold? Would it be legal in some places and illegal in

LITHWICK: Yes. All of these cases that we`re talking about, this one
comes up out of the Fifth Circuit. In this case, Texas wins in the fifth
circuit. But everyone in the cases we`re talking about, you`re have in
some jurisdiction where that court held something and then that`s the law.
And other jurisdictions where the court went the other way, it`s not the
law. You`re going to have an absolute patchwork around the country where
things that are fundamental constitutional questions.

This is what the court does. It take circuit split, they can`t get

MADDOW: So, for example, the abortion case, that`s another one where it`s
the Fifth Circuit, and the Fifth Circuit has said that Texas is very
extreme anti-abortion laws which shut down tons of clinics in the state,
that those that law is kosher and it could stand. If some other circuit
strikes down laws like that, does your constitutional right there just
depend on where you live or is it in limbo? What law holds?

LITHWICK: In Texas and Louisiana and Mississippi, the fifth circuit states
you will not be able to get those procedures. Those clinics shut down or
whatever happens, it is illegal.

If you`re in a jurisdiction that the court has either differently, or the
appeals court has never ruled, you will be able to get it. So, again,
you`re going to see a country in which it depends on where you are. If you
cross state lines, your constitutional rights change.

MADDOW: So, this seems fascinating and also utterly untenable for any
significant amount of time. I mean, it`s one thing to have a period of
limbo, which we know things will be settled, but this the political world
people are talking without apparent alarm about keeping this vacancy on the
court for a year or however long it takes. That would be – that would be
an unusual and difficult constitutional situation for the country, wouldn`t

LITHWICK: Well, it just means that the uncertainty persists and it`s
really interesting, you know, at a moment where you`re looking at kind of
Congress blowing up and you`re looking at the powers of the presidency
blowing that they will take the court with them. You know, basically,
hobble all three branches of government simultaneously. It`s really,
really difficult to go on for huge lengths of time with a 4-4 court.

MADDOW: Dahlia Lithwick, senior editor for “The Slate”, I have a feeling
I`m going to be calling you more frequently in days ahead. Dahlia, thank
you very hutch.

LITHWICK: Thanks for having me, Rachel.

MADDOW: All right. I told you this is a big deal. This is a freaking big
deal. This needs to get sorted out.

We`ll be right back.


MADDOW: In 2005, President George W. Bush got the chance to fill two
vacancies on the Supreme Court, one left by the retirement of Justice
Sandra Day O`Connor, the other following the unexpected death of Chief
Justice William Rehnquist.

In the midst of that process, as President Bush was trying to get the seats
filled, Justice Antonin Scalia was asked what he thought about the whole
way that we put justices on the bench these days.


INTERVIEWER: You were confirmed by the Senate by 98-0. Are you concerned
that the Supreme Court nomination process has become too politicized?
Could you be confirmed today?

wouldn`t want to go through it today. I`ll tell you that much.


MADDOW: Justice Scalia sailing through 98-0, doing that once was enough.
Wouldn`t want to risk going through that process again.

But you know what? Someone has to. Hold on.


MADDOW: Because of the way my job works, I`m usually chained to my desk
most days. But one day, a couple of years ago, 2013, I was lucky enough to
leave for the best possible reason. I got a seat at the Supreme Court for
the oral arguments in the big case of the Voting Right Acts. This was the
case where the conservative majority in the country ended up basically
gutting the Voting Rights Act and lots of states that had been blocked from
making voting harder particularly from minorities, suddenly, they got the
green light from the Supreme Court to put up new barriers to voting. So,
it was a really big consequential case. It was amazing to see that history
get made.

But when you get to see the justices this person, not only do you get to
see the unspoken body language and reactions and the way they treat each
other on the bench, you also get to hear the reactions from the crowd
gathered to hear the arguments in the case. In that day in 2013, in the
court room for the Voting Rights Act case, I can report from firsthand
experience that Justice Antonin Scalia said something in the arguments in
that case that caused the crowd to gasp.

Now, because of the way the justices were miked for the audio recording,
that gasp from the room was not recorded for history, but I was there. I
can tell you it happened – in response to Justice Scalia explaining away
why, in his view, Congress voted repeatedly and unanimously to reauthorize
the Voting Rights Act.


SCALIA: This last enactment, not a single vote in the Senate against it.
And the House is pretty much the same. Now, I don`t think that`s
attributable to the fact that it is so much clearer now that we need this.
I think it is attributable – very likely attributable to a phenomenon that
is called perpetuation of racial entitlement. It`s been written about.
Whenever a society adopts racial entitlements, it is very difficult to get
out of them through the normal political processes.


MADDOW: The perpetuation of racial entitlement. This is what Justice
Scalia said about the Voting Rights Act, about voting, it`s a racial

Justice Scalia was obviously against the Voting Rights Act. And a moment
like that happens and you realize what he`s arguing is that the Congress is
too cowardly, too scared to get rid of the Voting Rights Act as they should
because they have been racially blackmailed. And so, therefore, the
Supreme Court should take it out of their hands.

Justice Scalia also once famously compared animus against gay people to
animus against murderers and polygamists and animal abusers. It had a
special knack for that kind of argument. I would say, a lot of different
issues, but particularly on the issue of race.

Just a couple of months ago, an oral argument on the case relating to
affirmative action, Justice Scalia again said something that resulted in
gasps throughout the courtroom.


REPORTER: The University of Texas at Austin says, to achieve a level of
campus diversity that improves learning, race must be a factor in
admissions. But could it be, Justice Antonin Scalia, that affirmative
action harms some students?

SCALIA: There are those who contend that it does not benefit African-
Americans to get them into the University of Texas where they do not do
well, as opposed to having them go to a less advanced school or a slower
track school where they do well.

REPORTER: He said some studies show that most black scientists do not come
from elite universities.

SCALIA: There`s courts from lesser schools that they feel they are being
pushed ahead in classes that are too fast for them.

REPORTER: That produced a few gasps in a courtroom.


MADDOW: Justice Scalia on how black people and higher education should go
to slower track schools because they are more likely to do well there.

There`s a reason Justice Scalia was so polarizing. But that kind of stuff
made him not just a conservative justice, it made him the conservative rock
star of this court and it made him a leader for the conservative majority
that this court has had since the 1970s.

Part of reason of succession of Justice Antonin Scalia is such a big deal
is that when President Obama does replace him, for the first time in a
generation, there will be a majority of Democratic nominees on the court.

So, yes, conservatives are losing their rock star, but conservatives are
also about to lose their majority, and that is why everybody`s freaking



constitutional responsibilities to nominate a successor in due time. There
will be plenty of time for me to do so and for the Senate to fulfill its
responsibility to give that person a fair hearing and a timely vote. These
are responsibilities that I take seriously, as should everyone. They`re
bigger than any one party. They are about our democracy.


MADDOW: President Obama saying he plans on nominating a successor to
Justice Antonin Scalia in due time. On previous retirements, President
Obama has taken about a month to name a nominee. I think nobody expects
him to wait that long this time.

Joining us is Kenji Yoshino. He`s the Chief Justice Earl Warren professor
of constitutional law at NYU.

Kenji, it`s great to see you. Thanks for having me.

KENJI YOSHINO, NYU SCHOOL OF LAW: Thanks so much for having me.

MADDOW: Very unexpected circumstances –

YOSHINO: Yes, indeed.

MADDOW: With huge political consequences.

Who do you – who are you looking at, what type of person, when you`re
thinking about who President Obama might appoint, what are the sort of
characteristics you think we ought to be looking at?

YOSHINO: Well, I think there are characteristics in ordinary time and then
there are the characteristics –

MADDOW: Yes, exactly.

YOSHINO: – like in this particular historical moment.

So, I`m just going to go with this particular historical moment which I
think amplifies all the things he would usually look for. So, you could
look for somebody who was confirmed unanimously to the D.C. Circuit, which
is a feeder to the United States Supreme Court like Sri Srinivasan. He`d
be the first Asian-American on the United States Supreme Court. So, you
know, I think that`s something that must have crossed President Obama`s
mind at some point.

But going back to what you were saying earlier in the show, I think the
only real power that President Obama has is the power of exhortation and
outrage on the part of the American people to what Nan Aron was saying,
about how there needs to be a greater sense of outrage about the fact that
this is completely unprecedented, that President Obama not only has a
mandate but a duty to fill this position, that your constitutional right
don`t fade in and out like a cell phone signal depending where you are in
the country to borrow a phrase of yours.

So, I think he might actually look for someone who is more high-profile in
the public sphere along the lines of a Kamala Harris or a Loretta Lynch,

MADDOW: In order to heighten the public focus on the stakes.

YOSHINO: Exactly, because nobody really focuses on the federal judiciary
as much. But I think once you start looking at attorney general of the
United States or when you start looking at political figures that they have
a kind of Earl Warren-esque appeal, and it might be that kind of – you
know, Earl Warren was put on the court at a very contentious era, during
Brown versus Board and I think he was put on because he was a politician.
He was not a judge`s judge and it was seen that this is such a royal
period, not only in the country but for the court that it would actually
take a politician to smooth the water.

MADDOW: If this were more normal times, if this weren`t this particular
circumstance, are we at a point where we would be expecting President Obama
to be considering only judges, only people from sort of within that part of
the legal world for a seat like this, or are we at a time when it`s
becoming more fashionable or popular at least to consider another
politician, a cabinet official, a senator, somebody else with a different
kind of record of public service?

YOSHINO: Yes, I think Elena Kagan`s nomination to the Supreme Court was a
game changer. Obviously, it was a successful one.

MADDOW: Having not been a judge but having been a distinguished legal mind
in other ways.

YOSHINO: Absolutely. So, she was the dean of Harvard Law School and then
she went on to become the solicitor general of the United States and argued
a bunch of cases before the Supreme Court. But, you know, before she sat
on the United States Supreme Court, she had never served as a judge at any
level of the federal judiciary. So, if that`s a kind of bellwether or
harbinger of things to come, then that could be the way to go.

Chief Justice John Roberts has said in the past at least that he`s very
proud of the fact that it was a judges court – before she came onto the
court, it was all judges. But I think that may actually be changing
because I think the court has a real need to speak to the country in more
direct ways and not to be part of like the cognoscenti or to borrow from
Justice Scalia`s language himself, not to be with the templars rather than
the Valeans. I think we need people that are actually out there in public
life before they go onto the court.

MADDOW: And I think your point is taken that in addition somebody like
that may have the ability to focus public attention on what is now going to
be an absolutely massive and massively consequential political fight.

Kenji Yoshino, professor of constitutional law at NYU and all-round smart
human – thank you, Kenji. Thanks a lot.

YOSHINO: Thank you, Rachel.

MADDOW: Appreciate it.

YOSHINO: Always a pleasure.

MADDOW: Got lots more ahead. Stay with us.


MADDOW: So, maybe President Obama will pick a nominee for the U.S. Supreme
Court who`s already on a lower court, somebody who was, say, approved
unanimously by the Senate, and so the Senate can`t say no to them now.

Maybe he`ll nominate somebody else who has been through Senate confirmation
recently like, say, Homeland Security Secretary Jeh Johnson or Attorney
General Loretta Lynch, both of whom are distinguished attorneys, both non-
ideological and well respected, basically non-controversial members of the
Obama administration. Also both recently vetted and confirmed by the U.S.

Or maybe he`ll just cut to the chase and pick an actual senator. Imagine
like a senator who`s a centrist, who doesn`t have any enemies in the Senate
or in the world, squeaky clean, somebody on the judiciary committee maybe.
Somebody who`s a woman. Somebody who`s like a former prosecutor.

It`s like the fantasy football Supreme Court nominee you would invent from
the most confirmable parts of other people. It`s also the biography of
Senator Amy Klobuchar of Minnesota, centrist Democratic senator who does
not have an enemy in the world, has a squeaky clean reputation, and is a
former prosecutor. That is why you are seeing Amy Klobuchar`s name on the
list – on the short list in terms of a potential successor to Justice
Antonin Scalia.

And Amy Klobuchar will be here on this show live tomorrow night – until
she cancels at the last minute because she`s being vetted for the Supreme

That does it for us tonight. We`ll see you again tomorrow.


Good evening, Lawrence.


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