The Rachel Maddow Show, transcript 1/31/2017

Dahlia Lithwick, Kenji Yoshino, Jeff Merkley


Date: January 31, 2017

Guest: Dahlia Lithwick, Kenji Yoshino, Jeff Merkley



CHRIS HAYES, “ALL IN”, MSNBC HOST:  And that is where we are, right?  We`re

at the point of transparent obstruction on both sides.


Olivia Nuzzi and David Jolly (ph), thank you. 


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. 


And thanks to you at home for joining us at this hour. 


It`s a big tonight.  This is a big important historic news day.  Really

good to have you here.  Thank you for watching the news on a night like

this and thanks for watching it here. 


Antonin Scalia, “Nino” to his friends, he was beloved by his fellow Supreme

Court justices.  Even the justices who disagreed with him the most, perhaps

especially the justices who disagreed with him the most in terms of their

day jobs, they loved his company.  Justice Scalia and Justice Ruth Bader

Ginsburg, they shared a love of opera.  Justice Scalia and Justice Elena

Kagan, they went hunting and fishing together. 


Justice Scalia was deeply and antagonistically and provocatively

conservative.  He was also witty.  He was also apparently really fun to be

with and he lived an active life.  He also had heart trouble. 


And last February, almost a year ago, he died in his sleep.  He was at a

swanky hunting lodge in Texas only about 30 miles from the U.S./Mexico

border and it was a shock when he died.  It was a very, very sad loss for

his family and for his many friends.  It was also, of course, a political

shock because his death was a surprise and it opened up a surprise vacancy

on the Supreme Court. 


And with almost exactly a year left in his presidency, we learned that

Barack Obama would get to name a court nominee to fill the seat vacated on

the court by the death of Antonin Scalia – or not. 


Even before former President Obama named his nominee, even before he named

Judge Merrick Garland, Republicans announced that they would hold open the

Scalia seat.  They would not hold hearings for any Obama nominee, no matter

who the president picked, they were not going to consider his nominee. 

Honestly, because the president is a Democrat and they didn`t believe they

had to and so they believed they would not, thank you very much. 


And that has never been happened in our country.  Not like that.  But

tonight, that radical decision, not a radical decision by Donald Trump but

a radical decision by the Republican Party in the Senate.  Tonight, that

radical act by congressional Republicans, it bore fruit – awkwardly

phrased fruit, a little hiccup in the execution in the end, but still. 





promise to the American people by nominating Judge Neil Gorsuch of the

United States Supreme Court to be of the United States Supreme Court. 




MADDOW:  Nominating judge Neil Gorsuch – yeah.  It was – the actual

announcement was a little garbled, but the president tonight did succeed in

nominating a federal appeals court judge named Neil Gorsuch to fill the

seat on the Supreme Court that was vacated almost a year ago by the death

of Antonin Scalia but Republicans held that seat open for all of this time

because they would not allow hearings on a nominee from a Democratic



It is, I know that we all know this story because we all lived it, right? 

But it is – just step back from it, it is a remarkable series of events

that got us here and now, we`re here.  There are protesters outside the

court tonight. 


They were ready to go even before the name Neil Gorsuch was announced

tonight.  They were there to protest this nomination not necessarily

because of anything specific about him, because nobody knew it was going to

be him until 8:00.  Those protesters were there and set to be there because

of the circumstances surrounding this vacancy on the court and surrounding

this nomination. 


Democrats in the Senate even before Neil Gorsuch was announced tonight,

Senate Democrats have openly mulled whether they should try to reciprocate

in kind what the Republicans did to President Obama with holding this seat

open for almost a year.  As to whether or not Democrats have the power to

do that – well, the senator who has led the charge and said that he will

lead a filibuster to hold this seat open because this is a stolen seat,

that Democratic senator is going to be joining us tonight live in just a

few minutes.  You will want to see that. 


As for the specifics of this nominee, though, judge Gorsuch is most famous

nationally for his role in a controversial case brought by the Hobby Lobby

retail chain.  The Hobby Lobby retail chain for years they had provided

health insurance to their employees that included coverage for various

kinds of birth control.  But then, insurance covering birth control became

a factor and a point of discussion and a point of controversy in Obamacare,

in the Affordable Care Act.


And once that happened, Hobby Lobby decided that they had an objection on

religious grounds that they had religious beliefs as a business and those

religious beliefs were now being violated by the Affordable Care Act, by

the regulations around insurance and the Affordable Care Act even though

they had been providing birth control coverage through their employees`

insurance all along.  They just discovered these religious objections once

it became a controversial issue in the Affordable Care Act. 


It was a strange case.  It was a controversial case.  The retail store`s

claims succeeded at the Supreme Court but the way the case got to the

Supreme Court was in court through Neil Gorsuch`s lower court where he

sided with them on their religious objections. 


Judge Neil Gorsuch does not have a substantial record specifically on the

hot button issue of abortion.  So, that may be an interesting thing in

terms of how both sides react to his nomination. 


Judge Neil Gorsuch was confirmed to his current seat on the appeals court

by a voice vote in 2006.  The president described that as a unanimous vote

and it`s a kind of unanimous vote but it mostly means people don`t formally

vote, it just got approved. 


Judge Gorsuch is from Colorado.  Judge Gorsuch`s family has a famous

political history because his mom ran the EPA for Ronald Reagan in a tenure

that ended really, really badly and is a fascinating story.  But that was

his mom. 


As for him, how is this going to go?  What should we know about him? 


Joining us now is Dahlia Lithwick, senior editor and legal correspondent at

“Slate” magazine, someone I always want to turn to as nights like this. 

Someone we booked before we knew it was going to be Neil Gorsuch. 


Dahlia, thank you for being here.  It`s great to have you with us. 


DAHLIA LITHWICK, SLATE:  Thanks, Rachel.  I`m assuming you booked someone

else and it was right down the wire who you called, right? 


MADDOW:  Well, I was going to summon you both and make you stand hear

wearing the same outfit then I was going to have someone in a ball gown

pull a spangly curtain reveal one of you but we don`t the budget for that

kind of thing. 


Neil Gorsuch was a – we`ve known for a few days that he was on the

shortest short list, that he might be one of the picks.  What`s your

overall view of this choice by the president? 


LITHWICK:  In a way, Rachel, it`s hugely surprising because if you think

about the president`s – most of his cabinet picks, he`s picked in some

sense the most nihilist choice, right?  The person who he hates the

institution they`re going to head up in some fundamental way.  That is not

Neil Gorsuch.  I mean, this is not a bomb thrower.  This is not someone in

any way who doesn`t believe in the judicial branch and in that sense it`s

surprising because, you know, I think disrupters are kind of Trump`s



So, this is an incredibly solid, respectable, conventional pick that anyone

would have made.  In one sense, it`s surprising for Trump because Trump

promised us a blue-collar, non-Ivy non-fancy pants guy, and Gorsuch was

actually the outlier on his 21-person short list for being the one fancy,

Ivy pedigree, blue blood guy.  So, in that sense, it`s a funny pick, but in

every other sense, pretty conventional. 


MADDOW:  He`s sort of in the same way that the president attacked Goldman

Sachs for having captured Hillary Clinton and having been the great

downfall of Ted Cruz`s ties to Goldman Sachs and then he brings on six

people from Goldman Sachs into the administration.  We are seeing that as a

trend in terms of his choices.


He is famous for that Hobby Lobby case, for his role at the appeals court

level while that case made its way to the Supreme Court.  I described that

in a very short way. 


First of all, tell me if I got that right and tell me whether that might be

important in terms of any controversies around him, or any important

insight into what he might be like? 


LITHWICK:  Look, I think you made this point and it`s important.  The two

litmus tests that Trump promised on the campaign trail were somebody who

was going to support guns and someone who was going to end Roe v. Wade, and

in a strange way, he picked a guy who has no actual record on those issues. 


You can sort of dance around them, but in a weird way give than he pledged

that those were his nominees, unless he knows something we don`t know, he`s

put Gorsuch in a funny position.  There`s not a tremendous record. 


I will say that on Hobby Lobby and abortion, we know that Gorsuch not only

voted as you said, against the contraception mandate, we know that – his

sort of academic interest, his big book he`s written and thought about, all

has to do with end-of-life issues, physician-assisted suicide, the sanctity

of life.  So, I think it`s a useful template to think about how he might

think about abortion.


But certainly, you know, squarely on these issues, we don`t have a ton of

guidance.  We know generally he is Scalia-like both in his approach, his

sort of minimalist, textualist approach and Scalia-like in his politics,

but on these two issues, he`s a bit of a cipher. 


MADDOW:  Specifically on that abortion issue, just, Dahlia, because

abortion has been such a point of contention for nominees of both parties

and they go through this kabuki theater of pretending like they`ve never

thought about it before when they`re inevitably asked about it at their

confirmation hearings, we`ve been hearing noise that anti-abortion groups

might not be totally comfortable with him.  That in the ambiguity, there

might be some concerns on the right that he`s insufficiently anti-abortion. 


Is there any reason to suspect that? 


LITHWICK:  I don`t think there`s reason to suspect that but as I suggested,

Rachel, I think the fact that Trump didn`t pick someone who looked like a

Bill Pryor who he promised us, a culture warrior who was coming out blazing

for Roe and he didn`t give that.  I would not be surprised if some of the

anti-Roe groups are really pretty perplexed that he didn`t make good on the

one promise that got them out to the polls for someone that in other ways

they didn`t like very much at all. 


MADDOW:  Dahlia Lithwick, senior editor, legal correspondent at “Slate”

magazine – I`m sure we will be talking more about Neil Gorsuch in days

ahead.  Thanks for being here, my friend. 


LITHWICK:  Thanks, Rachel. 


MADDOW:  1789, President George Washington got to be the first president to

make a nomination to the United States Supreme Court.  1789.  There, of

course, are benefits to being first.  When George Washington got to make

his Supreme Court nomination, he got to nominate six justices all at once. 

Brand new court, got to fill it up. 


And when he made those six nominations in two days the United States Senate

confirmed all six of them.  That`s how we got the very first Supreme Court

and every president since George Washington would love to be treated like

that, right?  They`d love to have everybody confirmed in two days and pick

every justice on the court.  But there will never be another George



That said it isn`t usually that hard for presidents to get their nominees

confirmed speaking as a general matter.  I mean, in American history, the

vast majority of Supreme Court nominees have been confirmed, and the vast

majority of those confirmed have been confirmed by a lot, by big

overwhelming votes, there`s only been a handful of exceptions in modern



Reagan nominee Robert Bork, he was famously rejected by the Senate in 1987. 

In the George H.W. Bush administration, in 1991, Clarence Thomas, he was

almost rejected by the Senate.  He squeaked by on a 52-48 vote, which is

the narrowest approval margin for a Supreme Court justice in modern



There was also a weird period a little bit before that, 1968, 1969, 1970,

that was like a Bermuda Triangle for the Supreme Court.  This was after

LBJ`s triumphant nomination of Thurgood Marshall to be the first African-

American Supreme Court justice.  After that, things went off course and

over the next few years, with Johnson at the end of his firm and then Nixon

at the beginning of his time as president between them, the two of them air

balled on four different nominees for the Supreme Court who were all

rejected or forced to withdraw in scandal.  But again, I think of that as a

weird Bermuda Triangle period in Supreme Court nominees. 


There are exceptions.  There was that weird time period.  There was the

tough time for Clarence Thomas.  There was Robert Bork.  There are these



But those exceptions proved the more general rule, that if you get to the

point where the president is nominating you to be a Supreme Court justice,

and the Senate is considering your nomination to be a Supreme Court

justice, you are likely to get through. 


I mean, look at the justices confirmed in the late 20th century.  Anthony

Kennedy, 1987.  The vote on him was 97-0.  David Souter, approved in 1990. 

The vote on him was 90-9.  Ruth Bader Ginsburg, approved in 1993, 96-3. 

Stephen Breyer, the following year, 1994, his vote was 87-9. 


That`s how the last century ended.  Overwhelming votes on what Supreme

Court nominees, those huge votes, 90-vote margins.  That`s what they used

to get.  Like liberals, conservative, it didn`t matter.  Everybody got

those overwhelming numbers. 


But then, we hit the millennium, right?  This century kicked off with Bush

v. Gore.  With the Bush v. Gore decision in the year 2000, the immensely

controversial decision in which the Supreme Court actually chose the

president in a 5-4 vote where the votes lined up precisely on ideological

lines, conservative justices all voted for the Republican, liberal justices

all voted for the Democrat, and because there were five conservatives and

only four liberals on the court, that`s the reason why we got President

George W. Bush instead of President Al Gore. 


And then to rub salt in the wound, for the first Supreme Court pick of the

21st century, the first Supreme Court pick after that, President George W.

Bush chose one of the lawyers who had advised the Bush camp on the Florida

recount in Bush v. Gore.  Talk about chutzpah. 


Ultimately, John Roberts did very well at his confirmation hearing.  He did

get confirmed.  The vote was 87-22 which is narrower than most votes

historically but not bad. 


Then, perhaps a little high on life over how well that went with John

Roberts, despite how bold that pick was, maybe a little overconfident,

maybe feeling too many of his oats, we then got the Harriet Miers disaster. 

Remember that?  What was that about? 


President George W. Bush after his success with John Roberts, he nominated

his old buddy, his old friend from Texas whom he had brought to Washington

to work in the White House counsel`s office.  I mean, nobody had any idea

why he nominated Harriet Miers other than the fact that he liked her and

they went way back. 


That nomination was greeted with bipartisan bafflement in Washington. 

Conservative groups ran advertisements attacking the Harriet Miers

nomination.  Conservative groups.  And Republicans all spoke against it. 

Democrats didn`t even have to fight.  That nomination lasted precisely 24

days before it was withdrawn.  And lesson learned apparently.


Then, we got Samuel Alito.  Ultimately when the vote came for Alito, there

were 42 no votes against him, all from Democrats.  The most no votes

against a successful nominee since Clarence Thomas. 


Then, thereafter we got a new president, and we got President Obama`s two

nominees, Sonia Sotomayor and Elena Kagan, neither of whom was particularly

controversial as a pick, but more than 30 Republicans voted no on each of

them anyway. 


You see the overall trend here, right?  No Supreme Court nomination is

exactly like the ones that preceded it but you see the trend here.  It has

become hardener recent years to get confirmed as a Supreme Court justice,

particularly post-Bush v. Gore.  We just don`t see the overwhelming 90-vote

margins that we saw as recently as the Clinton administration.


And that process of the average number of no votes creeping up and up and

up, votes for the nominees getting more and more partisan, that process was

already well under way before Justice Antonin Scalia died last year

unexpectedly on February 13th.  That was almost a year ago now.


And immediately after Justice Scalia died, literally the night we learned

of his death, Republicans in the Senate came out and said they weren`t

going to allow a vote on any nominee to replace him.  President Obama ended

up the following month nominating Merrick Garland anyway, the definition of

a non-controversial moderate choice. 


The Republicans never even held a hearing on him.  They instead have held

open that seat for more than a year simply because they didn`t want a

Democratic president to get to appoint someone to the court.  Several

Republican senators said before the presidential election that if Hillary

Clinton won the election, they would continue to hold that seat open for

four years, for eight years if necessary because Hillary Clinton is a

Democrat, and new Republican rule, Democrats don`t get to appoint Supreme

Court justices. 


Republican senators now openly hewing to the newly defined Washington, D.C.

principle that only Republicans are allowed to appoint Supreme Court

justices now. 


The nominating process was already getting harder than it was historically

and way more partisan, and that was before the Republicans held a seat open

for a year for 100 percent partisan purposes which is the only reason the

new president had this seat to fill tonight announcing that the nomination

will go to Neil Gorsuch. 


This was going to be hard anyway, right, just look at the history.  But

now, I think it is safe to assume that Democrats are going to make this as

difficult as humanly possible, even before we knew who the name of the

nominee would be.




MADDOW:  The date was August 4th, 2006.  Police in Lafayette, Colorado,

made their way to West South Boulder Road and they were investigating

report of pot plants, marijuana plants that had been reported growing in

that area.  And the Lafayette, Colorado, police arrived on that scene,

Friday night, and they found a 22-year-old named Ryan Wilson. 


And Ryan Wilson admitted to police some of the pot plants in the field were

his, but then he decided to bolt.  He started to make a run for it.  And

one of the police officers on the scene shot Ryan Wilson with a taser, shot

him in the head, and Ryan Wilson died that night.  County coroner said he

died of an irregular heart beat caused by the combination of the exertion

from running from police, the shock from the taser and a heart condition he

had had since birth. 


The following year, Ryan Wilson`s parents filed a wrongful death suit.  His

parents argued that Ryan Wilson didn`t do anything that could be construed

as violent.  The suit claimed that the officer didn`t warn Wilson he was

going to use the taser, that when he shot him with the taser hitting him in

the head and then his left side, they claim that was excessive force that

shouldn`t have been used against their son that night. 


In 2013, that lawsuit ended up at a federal appeals court, the 10th Circuit

U.S. Court of Appeals.  A three-judge panel on the appeals court threw out

the lawsuit, threw out the parents` lawsuit, threw it out – the lawsuit

was against the city of Lafayette, against the police officer in question

and the judge wrote in that decision that the officer who had shot Ryan

Wilson with that taser, that officer had qualified immunity which protects

government official doing their jobs from civil liability for the damages

and the parents` case was thrown out. 


The judge who wrote that opinion was Neil Gorsuch, President Trump`s

nominee to the United States Supreme Court as of about 84 minutes ago. 

He`s somebody whose record we`re about to find out a lot more about

starting tonight. 


Joining us now is Kenji Yoshino.  He`s professor of constitutional law at

NYU Law School.


Kenji, it is great to have you here.  Thank you.



for having me.  Great to be here. 


MADDOW:  We had telegraphing it might be Judge Gorsuch.  What`s your view -

- first of all, just big picture as to whether this is a surprising

nomination?  Whether this is a provocative nomination?  What do you think? 


YOSHINO:  I don`t think it`s that provocative when you compare him to the

other two candidates whose names were rooted about.  So if you compare him

to a Pryor, to a Hardiman.  But I think what we have to insist on comparing

him to is Merrick Garland.  I don`t want that to be lost. 


That we`re going into a period, where, you know, as you said in the earlier

segment, we had a Supreme Court back in the beginning that was very fragile

institution.  So, yes, you know, George Washington got to appoint all of

the justices.


MADDOW:  When you`re first, you got that privilege.


YOSHINO:  But let`s also remember that Chief Justice Marshall was very,

very careful about husbanding the credibility of the court because it was a

weak institution.  People used to leave all the time to become state court

justices or diplomats, something that would be unthinkable today because

it`s the most prestigious position –


MADDOW:  The first chief justice left to be a governor.  You would never

imagine that happening now. 


YOSHINO:  Yes.  And so, what I`m worried about – and also Chief Justice

Marshall used to insist that opinions be only in because he was so worried

that anything less than unanimous opinion would sort of weaken the

credibility of a very fragile and nascent institution. 


What I worry about when I see those graphs about how conflicted we are with

regard to these confirmation hearings is that the Supreme Court may not be

the rock of Gibraltar that you and I grew up with, right?  It may not be

this completely independent, completely respected, really the most

respected of the three branches if you believe the public opinion polls,

but rather may be seen as another partisan institution precisely because,

you know, with all due respect the president is treating this nomination as

a bit of a reality show, but also and more deeply the fact that Merrick

Garland didn`t get a hearing. 


MADDOW:  Yes, it seems to me like the truly radical thing that has happened

is the Merrick Garland nomination blanked by the Republicans.  I really

feel like the – I mean, I didn`t mean to say it this bluntly but I don`t

know any other way to explain the principle that they apply to that, which

is that a Democratic president should not be allowed to appoint a Supreme

Court nominee, not when Republicans are in control of the nomination

process because they control the Senate. 


That was the truly radical act.  It seems like the choice of judge Gorsuch

is a relatively mainstream choice that you might expect from any Republican

president, but the circumstances around this nomination are still radical

because of the garland nomination, because how long the seat has been held

vacant, and because of that partisan precedent or the breaking of non-

partisan precedent which we`ve now seen. 


YOSHINO:  Exactly.  And so, I think that when we sort of get to the game of

like comparing him to the other two candidates in this particular cycle,

you know, we`re already sort of losing the real debate, which is like,

let`s compare him to the person who actually was nominated by the

president, Merrick Garland. 


MADDOW:  Do you think that his – there are things in his history that will

be substantively controversial or subject of acute questioning or concern

once he goes through this process?  


YOSHINO:  Absolutely.  I think this Hobby Lobby decision he was still

extremely controversial.  It essentially says, you know, corporations are

persons who can exercise religions and on those grounds can engage in the

religious right to discriminate from laws that you or I would have to

follow.  So, you know, there`s the health care contraception mandate

promulgated by the Obama administration and that Hobby Lobby, which is a

corporation, says we don`t to adhere to that because of our religious



So, that`s not the kind of classic religious accommodation claim we believe

that is brought forward by individuals.  It`s really a for-profit entity

bringing that.  So that`s actually a troubling decision.  This qualified



I don`t know if you`ve been watching this, but there`s an increasing drum

beat among conservative scholars to get rid of qualified immunity all

together because it gives too much of a bye to governmental officials.  So,

the qualified immunity case I think is going to be quite controversial.


And then, also, the Hobby Lobby case is not a standalone with regard to

religious liberties.  He also – he dissented from denial of a hearing on

banc, which is a dissent from a decision not to rehear a case in a Little

Sisters of the Poor case, which was kind of a crazy case from my

perspective.  So, you know, it may be that there`s reasonable views or

reasonable room to debate this, but from my perspective, this just seems

crazy because the Obama administration says, if you want exemption from the

contraception mandate sign this form and essentially, the objection of the

Little Sisters of the Poor was signing the exemption form itself was a form

of complicity.  So, they refused to do it.


So, they were opting out from opting out, and he believed they had a case. 

So I do think there`s a religious right to discriminate and different rules

apply to believers and to nonbelievers, or people who belong to minority

faiths is something we`re going to be hearing a lot of in the coming days. 


MADDOW:  Kenji Yoshino, NYU Law School professor of constitutional law –

as always, incredibly clarifying.  It`s really good to have you here,

Kenji.  Nice to see you.


YOSHINO:  Thanks so much.


MADDOW:  We`ll be right back.  Stay with us.




MADDOW:  We`ve been talking about whether Democrats will oppose the Supreme

Court nominee just nominated by President Trump.  Elizabeth Warren, senator

of Massachusetts, has just announced that she will oppose this nomination. 


Quoting from the statement that has just come out from Senator Warren,

“President Trump had the chance to select a consensus nominee to the

Supreme Court.  To the surprise of absolutely nobody, he failed that test. 

Instead, he carried out his public promise to select a nominee from a list

drawn up by far right activist groups that were financed by big business



Judge Gorsuch has been on the list for four months.  His public record

which I have reviewed in detail paints a clear picture.  Before even

joining the bench, he advocated to make it easier for public companies to

defraud investors. 


As a judge, he twisted himself into a pretzel to make sure rules favorite

giant companies over workers and individual Americans.  He sided with

employers who deny wages, improperly fire workers, and retaliate against

whistle blowers from misconduct.  He`s ruled against workers in all manner

of discrimination cases.  He`s demonstrated hostility toward women`s access

to basic health care. 


For years, powerful interests have executed a full scale assault on the

integrity of our federal judiciary, trying to overturn – excuse me, trying

to turn the Supreme Court into one more rigged game that works only for the

rich and powerful, they spent millions to keep this seat open and Judge

Gorsuch is their reward.”


“Based on the long and well-established record of Judge Gorsuch,” she

concludes, “I will oppose his nomination.”


Elizabeth Warren putting herself on the record tonight.  We`re seeing a

number of senators come out and say what their intentions are around this

nomination.  One of the senators who says Democrats should hold this seat

open, Democrats should refuse to vote on any one other than Merrick Garland

for this seat because it`s a stolen seat, that Democratic senator joins us

live, next.




MADDOW:  Summer of 1968, the presidential election was looming in the fall. 

And because when it rains it pours in politics, that summer, summer of `68,

the chief justice of the Supreme Court decided that he would like to

retire.  Chief Justice Earl Warren told President Johnson that he wanted to



Now, LBJ was at the end of his term, he was deeply unpopular, he decided

not to run for reelection.  And LBJ devised a plan for what he was going do

about that chief justice seat.  He decided that he would elevate to the

chief justice position a justice who was already on the Supreme Court, a

justice who`d already been on the court for three years, his friend Abe



And Republicans were not hot on Abe Fortas because of his liberal views,

because of his ties to President Johnson.  But their support, their

potential support for Abe Fortas being chief justice, that cratered when it

was revealed that Justice Fortas had accepted a bunch of speaking fees from

private donors for a series of college lectures, which he should not have



And so, they filibustered him.  They blocked his nomination for four days. 

On October 1st, 1968, a month before the election there was an attempt to

beat that filibuster and the attempt dramatically failed.


And the Abe Fortas nomination to be chief justice, that whole thing fell





UNIDENTIFIED MALE:  Fortas lost.  The vote was on cloture, on stopping the

filibuster, on enforcing members to stop talking, to sit down and to decide

whether to confirm Fortas or not.  They took a vote on ending the

filibuster and a Senate clerk announced the result 45-43.  That was 14-vote

short of the two-thirds of the senators present.  The Democratic leader,

Mike Mansfield, then said the appointment would be laid aside temporarily

and the Senate would go to other business. 




MADDOW:  That was October 1968.  That was so long ago, we didn`t have C-

Span, we had Senate sketch artists like it was a cameras banned from the

courtroom situation.


October 1968, that is the last and only time a Supreme Court nominee was

successfully filibustered in modern times.  The last time an opposition

tried to mount a filibuster was in 2006, the Sam Alito nomination.  Twenty-

four Democrats led by John Kerry and Ted Kennedy supported by Hillary

Clinton and Barack Obama, in `06, they attempted to filibuster Alito`s

nomination to the court, but 20 Democratic senators wouldn`t go along and

that effort failed.  So, again, the last time they were able to pull this

off was `68.


Is it going to happen again?  Can they pull it off? 


Prior to tonight`s announcement about who the nominee would be for the

Supreme Court seat, before we knew it was going to be Neil Gorsuch,

Republican Senate Leader Mitch McConnell had a suggestion for Democrats –

don`t filibuster. 




SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER:  What I would suggest from

our Democratic friends is that the nominee be handled similarly to

President Clinton`s two nominees in his first term and President Obama`s

two nominees in his first term. 




MADDOW:  President Obama`s two nominees in his first term, I`d like to get

really specific, right?  Because they don`t want to talk about the third

nomination that President Obama made.  No mention of Merrick Garland,

President Obama`s third nominee who faced this unprecedented blockade by

Republican senators who refused since last March to even hold a hearing on

his nomination despite the fact that Merrick Garland was a completely non-

controversial nomination. 


Well, tonight the new Republican president has announced that Supreme Court

Judge Neil Gorsuch is his choice for that Supreme Court that Merrick

Garland was supposed to be the nominee for. 


After Neil Gorsuch was announced as the nominee, we got this statement from

the Democratic Leader Chuck Schumer.  Quote, “The Senate must insist upon

60 votes for any Supreme Court nominee, a bar that was met by each of

President Obama`s nominees.  The burden is on Judge Gorsuch to prove

himself to be within the legal mainstream and in this new era willing to

vigorously defend the Constitution from abuses of the executive branch.”


The headline there, maybe not surprising. but the Democratic senator

affirming they`re going to insist on a 60-vote threshold.  Republicans

don`t have 60 votes in the Senate.  This means Democrats are going to



Senate Democrats were already under intense pressure from Democratic voters

who have been loudly upset with Democrats casting votes for Trump cabinet

nominees.  That pressure will intensify on Democrats now that we`ve got a

Supreme Court nomination as well, even before tonight, even before we got

the name tonight, one Democratic senator had been standing up loudly and

overtly saying that he would filibuster pick regardless of who was because,

he said, Republicans effectively stole the Supreme Court seat from

President Obama. 


The senator who has been making that case all along is Oregon Senator Jeff

Merkley.  Joining us now is Jeff Merkley.


Senator, thank you very much for being up late and being here with us on

nomination night.  Really appreciate it.


SEN. JEFF MERKLEY (D), OREGON:  Oh, you`re welcome, Rachel.  I wouldn`t

miss it.


MADDOW:  Well, does the announcement of Judge Gorsuch`s name, his remarks

tonight, the President`s introduction of him tonight, does that change your

mind at all about your desire to filibuster this nomination?


MERKLEY:  No, not at all.  I mean, the point I was making was we must not

forget that this is not a normal consideration.  This is a seat that was

stolen from the former president Obama.  That`s never been done in U.S.

history before. 


And to let this become normal just invites a complete partisan polarization

from here to eternity.  At what point does a majority say in the future, we

will not let someone make a nomination two years into their four years, or

three years into their four years, or their entire four years? 


So, I made it clear that I was going to insist on a 60 vote standard and

that I would vote against closing debate.  So insisting on 60 votes is the

way you start what we refer to as a filibuster, and then the question is,

are there going to be enough votes to shut it down.  And of course my hope

is that there won`t be.


MADDOW:  How many senators do you need to join with you in order to make it

so that Judge Gorsuch has to clear 60 votes in order to get confirmed?  How

many people do you need – 


MERKLEY:  You have to have 41 senators vote against closing debate.


MADDOW:  There are 48 Democratic senators – 


MERKLEY:  Forty-one.  Got another 48.  You need 41. 


MADDOW:  So, we`ve got 48 senators who are either Democrats or who are

caucusing with the Democrats.  Do you have any sense of your colleagues`

views towards this and whether or not you think you`ll clear that 41 vote



MERKLEY:  Well I suspect we`re going to hear a lot of statements from

colleagues.  But the colleagues who are waiting to see if possibly the

President would nominate someone like Merrick Garland are going to be

sorely disappointed tonight.  This is from the extreme right, someone who

has said corporations are people, made that case.  Someone who has

proceeded to be against class action suits which are the only opportunity

for fairness for a lot of citizens. 


I mean, you go by case by case by case.  This is about the powerful and the

privilege and oppressing the rights of the people.  I think there`s going

to be an enormous number of senators who decide that this person is not

suitable because they will not honor our “We The People” vision of

government embedded in our Constitution.


MADDOW:  Senator Merkley, I`ve sort of been reading the tea leaves on this

a little bit trying to get a sense of where the Democrats in the Senate are

on this, and whether or not this is a time when we might expect a

Democratic effort that would be a big deal, that would be a heavy lift in

political terms.  Not just because of the qualifications of this nominee,

but because it would be setting a new standard for what it means to get a

Supreme Court Justice. 


I look at the size of those protests in the streets and I look at the mood

of the Democratic base right now, I look at the reaction of Democratic

voters and protestors to what the new administration is doing and who

they`ve nominated to the cabinet and I see a lot of momentum.  I see a lot

of energy. 


How do you know whether or not it`s going to translate into this working? 

Are you worried that if you try and fail, Democrats will be showing

weakness here?


MERKLEY:  Well, I never worry about trying and failing.  You have to fight

the battles you believe in, and that`s what enables you to win is to

undertake that battle.  I can tell you that this weekend, I had two town

halls on Saturday. 


First, I had 600 folks crowded into a gym that could only fit about 400. 

It was almost scary.  And I thought, I`m never going to see another town

hall like this.  I went to my second town hall and 3,700 citizens showed up

to weigh in about how angry they are, how frustrated they are about how

America has gone way off track under just the, at that point 10 days of

this presidential leadership by Trump.


MADDOW:  Senator Jeff Merkley of Oregon, about to be involved in one of the

political fights of your life, sir.  Thank you for helping us understand

tonight.  I appreciate you being here.


MERKLEY:  You`re so welcome.  Thanks.


MADDOW:  All right. 


This is going to be interesting.  I mean, what Jeff Merkley is taking about

here, what Chuck Schumer now says is going to be the Democratic strategy is

to get 41 Democrats to line up with the filibuster.  They`ve got 48

Democratic or caucusing with the Democratic caucus senators in the Senate. 

If they can get 41 of the 48 to side with this strategy, they can, at least

theoretically, block this nomination from the minority. 


It would be a radical move, it would change the way that Supreme Court

nominees are approved in this country, sort of been changing on its own

anyway.  But this is going to be a fascinating thing to watch and it will

be fascinating to see if those protesters out on the street, all those

people showing up in Senate offices and town hall meetings and all those

things over the country, whether they`re going to backstop their Democratic

senators on this strategy. 


This is going to be a hell of a fight.  We`ll be right back. 




MADDOW:  Got a very interesting story coming up next about the famous

family political history of the nominee, Judge Neil Gorsuch who the

president just announced fn tonight as his nominee for the Supreme Court

seat after the death of Antonin Scalia.  That family history is very

interesting.  It`s sort of one of the storied tales of the Reagan

administration that I think has been a little bit lost to history, but it`s

about to come back because of Neil Gorsuch.


We`re also keeping an eye we just lost the shot just a moment ago – but

we`re also keeping an eye on a lot of protesters who have gathered tonight

outside the Supreme Court building, both in anticipation of this

announcement tonight.  And since Neil Gorsuch was named as the nominee,

we`re keeping an eye on that as we`ve had daily and nightly protests

against some aspect of the Trump administration every day for the last ten

days.  We`re now seeing that tonight in response to this nominee.


We`ll keep you posted on that over the course of the evening.  Stay with





MADDOW:  When I was a kid, I was obsessed with Jacques Cousteau.  Jacques

Cousteau, pioneer in ocean exploration.  He helped invent scuba gear, which

opened up whole new worlds of human interaction with the sea.  Jacques

Cousteau ultimately dedicated himself to documenting the ocean, to showing

us what he found so fascinating and so fragile about it.  Jacques Cousteau

films won three Oscars, when ten Emmys. 


And not surprisingly, because of his interest and his expertise, he became

a pretty vocal and world famous environmentalist.  And in 1983, Jacques

Cousteau testified before Congress about a bananas plan that had been

developed by the U.S. government, a plan to burn toxic waste at sea. 


At the time, there was a plan by the U.S. government that they would set

aside a rectangle, a 30-mile by 40-mile rectangle off the coast of Delaware

and Maryland.  And that would be the place where we`d put one of the

nation`s biggest waste disposal companies on ships to burn toxic

substances.  They were going to burn these toxins in huge incinerator ships

right off the coast of Delaware and Maryland.  Because who cares?  It`s

just the ocean. 


The amazing thing is that a major proponent of this plan was the EPA.  They

thought it was a great idea.  The agency called it well developed and

understood technology.  If that sounds crazy, it`s because that`s crazy. 

And that`s what the EPA was like under President Ronald Reagan. 


And the now mostly forgotten scandals and failures of his time in office,

one of the ones we are now remembering and that is resurfacing in history

is the way the EPA was run at the beginning of his presidency, specifically

under this EPA administrator, Anne Burford. 


Anne Burford was the first female administrator of the EPA.  She didn`t

last long.  She had to resign after 22 months on the job.  There was a lot

that was controversial about her tenure. 


After all, there was the idea to use big swaths of the ocean to burn our

toxic waste.  But one of the biggest controversies of her tenure involved

superfund sites because this is how President Reagan and his EPA

administrator handled superfund sites. 




REPORTER:  The people of Glenn Avon, California, may owe their lives to the

big trucks that haul away spring water from the edge of town.  The water is

laced with lead and PCPs and other poisons.  Legacy of a dump called a

string fellow acid pits, and that the trucks, paid for by the state of

California, weren`t hauling off thousands of gallons of water a day now,

Glenn Avon would be uninhabitable. 


Two years ago, Congress created a federal superfund to clean up sites such

as this.  Most of the money comes from a special tax on chemical and oil

companies.  $1.6 billion should be raised before the tax expires in 1985. 

But critics charged superfund hasn`t been used enough because of political

delays or because EPA has been too easy on the industries which pollute it. 

Political delays, example, the Springfellow Acid Pits, where not a penny of

the federal super fund has been spent yet. 


Barbara Birch (ph) worries that her daughter will play and poisonous

puddles.  Cathy Douglas (ph) is afraid to drink anything but bottled water.


As for the charges of going too easy on industry, example, Seymour

Recycling, Seymour, Indiana, where 60,000 drums and a half million gallons

of poisons were abandoned.  The philosophy of superfund was to spend now

and sue later, sue the companies that polluted. 


But superfund wasn`t – 




MADDOW:  Superfund wasn`t spent on Seymour.  Instead of suing, EPA

negotiated an agreement with the polluters who promised to spend $8 million

to clean it up.  Not enough to do a thorough job.  This was the kind of

news coverage around superfund sites during the Reagan era of the EPA. 


Photos like this running night after night after night on national evening

newscasts turned out to be enough to shame somebody into resigning.  The

handling and the corruption around superfunds sites under Reagan ended up

ending the tenure of his EPA administrator 22 months into the job. 


She was forced out by both Republicans and Democrats in Congress.  Reagan

stood by her.  In fact a year later, he appointed her to chair a National

Advisory Committee on Oceans and the Atmosphere.  You know, she had

demonstrated her passion for the subject by trying to burn all our toxic

waste in the nation`s oceans.  Either way, the backlash to that appointment

was great.  She eventually withdrew herself from consideration for that



So, Anne Burford had this fascinating history in the Reagan administration

and an end in politics that probably wasn`t what she wanted.  But despite

all of that, Anne Burford`s son did really well. 


Tonight, Anne Burford`s son, Neil Gorsuch, was nominated by President Trump

to serve on the Supreme Court.  And that part of his family history is

about to resurface, that whole part of the Reagan administration, which

might be handy given how the EPA is being handled by our current president. 


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




Good evening, Lawrence. 








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