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

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

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


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.


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 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.


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.


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.


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.


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.


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.


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?


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.


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.


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.


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.


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.


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.


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?


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.


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.


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.



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.


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.


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


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

TRUMP: That`s not keeping us safe.


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.


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.


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.


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.


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.


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.


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.


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


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.


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


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.


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.


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.




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.


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.


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.


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?


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.



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.


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.


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.


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.


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.


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."


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.


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


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.


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.


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.


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.


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.


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.


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.