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Trump to pick key swing vote as Kennedy retires. TRANSCRIPT: 6/27/2018, The Beat.

Guests: Jeffrey Rosen; John Meacham; Ilyse Hogue; Richard Blumenthal

Show: THE BEAT WITH ARI MELBER Date: June 27, 2018 Guest: Jeffrey Rosen; John Meacham; Ilyse Hogue; Richard Blumenthal

ARI MELBER, MSNBC: Thank you, Steve. Very interesting interview you had with the new nominee. Tonight, we turn to one of the most significant moments of the Trump presidency. Thanks to Justice Anthony Kennedy stunning announcement today. He used the end of this week`s momentous court term to say officially he is retiring this next month. Kennedy broke the news today in a traditionally terse letter, so we don`t know why he chose today.

But I will tell you this tonight. There is much hyperbole and drama these days. So let`s begin this newscast with something I have never said before on the show.

The filling of this vacancy is the most significant domestic development in American legal and political life since Donald Trump`s election. And a part for matters of war and peace, this is the most far reaching decision Donald Trump will make. And that presents a remarkable test for how Congress and the Democrats respond.

So before we go any further, we would like to begin with substance around here. Let`s look at why Kennedy is more pivotal than some other justices. On this divided court, he often broke the ties delivering the controversial Bush victory in Bush v. Gore. Writing the hotly debated first amendment decision protecting money as speak in Citizens United and siding with Donald Trump yesterday on that travel ban. And when this court has narrowly towards executive power and conservative causes, Kennedy was the one either helping or holding the line.

But when it was time for this Supreme Court in the last years to do what many progressives thought of as moving this nation forward, Kennedy was the experienced Republican appointee ushering in new eras like his historic ruling joining Democratic appointees in the court to define the right to same-sex marriage, the law of the land today or take on tough national security arguments after 9/11 and rule that even accused terrorists at Guantanamo Bay have due process rights. We have heard a lot about due process in the last week.

He also issued an order that limited but still upheld affirmative action as a way to advance diversity at campuses around the country. And he wrote the most far-reaching decision protecting women against the government putting a burden on their medical and abortion rights, a case that the GOP has now targeted for decades.

So when you think about those rights or cases, when you reflect on America towards (ph) throughout that history, when you hear those decisions you are hearing the echo of Justice Kennedy`s unusual approach on the court. A conservative to be sure but a conservative who believed there are times when the high court must lead the nation toward a model of incremental judicial progress.


UNIDENTIFIED MALE: Very dramatic moment here. A 5-4 decision written by Justice Anthony Kennedy. This is a total victory for the advocates of same-sex marriage.

UNIDENTIFIED FEMALE: The court had ruled that foreign terror suspects held at Guantanamo Bay have the right under the constitution to challenge their detention in U.S. civilian courts.

UNIDENTIFIED MALE: By a 4-3 vote the Supreme Court has upheld affirmative action program at the University of Texas in an opinion written by Justice Anthony Kennedy.


MELBER: An opinion written by Justice Anthony Kennedy. Well, those of us who follow the court, what see you as Kennedy opinion, you knew it meant something. Often you knew it was 5-4. You didn`t necessarily know which way it way going.

With Kennedy leaving, every one of those cases could be wiped right off the board if a Trump style conservative takes his place and gets the same kind of case. Without Kennedy, those cases we know would be decided pretty differently which is what Trump`s allies think he promise today.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We will begin our search for a new justice of the United States Supreme Court that will begin immediately. We have a very excellent list of great talented, highly educated, highly intelligent, hopefully tremendous people. So it will be somebody from that list.


MELBER: From that list which is a reference, a clear message to Trump`s base because in contrast to all the unplanned and spontaneous moves he has made as president, when you think about the travel ban under the border fracas (ph), Trump did not just make up his last scotus appointment as he went along. He used this list that you see on the screen. And senate leader Mitch McConnell now clamoring for a quick vote contradicting his own previous position that election years are no time to rush towards a hearing on scotus.


SEN. MITCH MCCONNELL (R), MAJORITY LEADER: We will vote to confirm Justice Kennedy`s successor this fall.

SEAN HANNITY, FOX NEWS ANCHOR: Will Justice Garland, judge Garland, get a hearing?

MCCONNELL: No. I don`t think so. This nominee is not going to be considered.


MELBER: Mitch McConnell, of course, broke over a century of precedent with that kind of hardball and it worked to deny Barack Obama his appointment. Tonight, there are activists calling for pay back and exploring plans to shut down the Senate or somehow the whole government to try to give McConnell, the McConnell treatment.

So we may be entering unchartered territory with the highest stakes decision of the Trump era that will outlast the Trump era because this becomes actuarial at a certain point. A young replacement for Kennedy could rule for two or three or even four decades raising fundamental questions about where we go from here.

And I say all that. That`s the legal substance before you even consider the extra fact that Donald Trump will be picking a jurist who could ultimately rule on whether Trump, the President who came under criminal investigation earlier than any other President in history, whether Trump must turn over evidence or give testimony in Bob Mueller`s Russia probe.

I`m joined by an esteemed panel. Maya Wiley, an attorney and former council to the mayor of New York City. Presidential historian Jon Meacham who knows his way around this White House decisions and Jeffrey Rosen, president and CEO of the national constitution center.

I begin with Maya, but same question for everyone.

What is the significance of Kennedy if it moves toward a Trump style jurist?

MAYA WILEY, FORMER COUNCIL TO NEW YORK CITY MAYOR: Well, what we are going to see is another Gorsuch. Gorsuch is going to be much more of a flag bearer for the Trump administration.

Justice Kennedy wasn`t really a swing vote. I think it`s actually the wrong way to think about him. And he himself purportedly hates that term. Most of his votes actually went with be conservative majority and most votes that were 5-4, he went with the conservative majority. Although, you point to some really important ones where he was more of an (INAUDIBLE).

I think we are going to see someone much more ideological in terms of activism on the court. I think we are also going to see that this -- the view on Roe v. Wade is very much one that is going to become an unspoken litmus test. But it won`t come out quite frontally when any of the candidates for this seat are being vetted because nobody wants to blow this up and that will certainly be one that will rally the democratic base.

JON MEACHAM, PRESIDENTIAL HISTORIAN: You know, the age of Reagan ended today. His last appointee, Justice O`Connor, Justice Scalia, Justice Kennedy. We are now in a court where there`s one Bush 41 appointee, and then Clinton and George W. Bush, Barack Obama.

This was the payoff for Republicans who decided once Trump had hijacked the party and the base had sided with him that they were willing to vote for Trump because they did not want a President Hillary Clinton making the decision we`re being con front confronted with today. And that, basically, there were two reasons it seems to me that Trump won with that part of the party. One was fewer taxes and the other was more justices.

MELBER: Jeffrey.

JEFFREY ROSEN, PRESIDENT/CEO, NATIONAL CONSTITUTION CENTER: So the difference between Justice Kennedy and the Justice Gorsuch is the difference between an originalist and an advocate of natural law jurisprudence.

Justice Kennedy was willing to define rights of privacy and dignity in the constitution that Justice Gorsuch or another Trump appointee would not. And that is why it is true that rule can be chip back or overturn and new privacy rights are not extended.

But I don`t think it is right that a future Trump nominee wouldn`t check the President if he threw journalist in jail or even a self-pardon might be challenged. The truth is what originalist conservative justices are willing to enforce limits on the presidency in Congress when I think the tack of history of the constitution supports it. So there will be impact of Justice Kennedy`s retirement will be as huge as you suggested, Ari.

It may be more in a lack of a willingness to strike down state laws in the way Justice Kennedy was but the same willingness to strike down federal laws. Kennedy voted to strike down more state and federal laws than any justice on the Roberts and reckless quote and the new (INAUDIBLE) more differential to state experimentation.

MELBER: Part of this also goes do what Donald Trump promised. Again the theory of the case that he is a kind of a quote-unquote "sloppy idiot" is really rebutted by a lot of his actions. And a lot of them are in the legal space because there`s actual lines in the law. He loves, it seems, to delight in breaking other types of norms. But he, as a marketer, figured out that people cared as Jon Meacham was saying a great deal about this particular issue. Take a listen to him on the campaign trail sticking to the talking points.


TRUMP: It`s our last chance. And that includes Supreme Court justices and second amendment, remember that.

We need a Supreme Court that in my opinion is going to uphold the second amendment. The justices that I`m going to appoint will be pro-life.

This is your final shot for the Supreme Court, for your second amendment. I mean, this is your final shot, November 8th.


MELBER: So Jeffrey, to that point, final shot. He mentions abortion there. I mean, if you had a Gorsuch style judge in place of Kennedy, the last big case I have mentioned 1992, Planned Parenthood v. Casey (ph), the defending women`s right in that regard, don`t you think it would go quite differently?

ROSEN: Roe would be overturned. Justice Stevens told me a few years ago, he thought it would be with another conservative nominee once Kennedy retired. But it`s not clear that the effect would be as dramatic as pro- choice people rightly fear.

Justice Ginsberg told me in an interview just a few years ago that the real impact of the overturning of Roe would be on poor women who already don`t have access to abortion in the red state where it`s not really available. So it would be huge symbolically and could really redefine the Republican Party. Because remember, after all, there are plenty of pro-choice Republicans were willing to vote GOP as long as the court kept the issue out of the political arena. It`s not clear that the overturning of Roe would be the most dramatic thing that could follow a Kennedy retirement. There will be lots of other important changes as well.


WILEY: I actually would say that it would be quite significant and one reason is demographic. Because poor women, first of all, are actually a growing part of the population thanks to income and wealth inequality. If you want to talk about southern states. You are talking about 55 percent of the black population and where the Latino population is growing rapidly. So you are actually talking about essentially barring a huge percentage of women from huge swaths of the country from access to something that should be safe, should be within their control to determine whether or not it`s medically appropriate for them under -- with access to a physician who is qualified to give them medical guidance. Once of the things that justice Kennedy left us with as part of his legacy is an incredible incursion in that in yesterday`s opinion.

So in the actual lived experience of women in this country, it would be quite significant.

MELBER: Quite significant.

And Jon, I have a member of the Judiciary Committee in the senate about to join us for a very pivotal discussion because they have a vote here. But to Maya`s point, I wonder if you could widen us out to history. You cover and you explore how we get where we get.


MELBER: And there are things that seems to happen sometimes accidentally. I don`t know if it makes you harder for you to write the history book.

MEACHAM: Makes it more fun.

MELBER: When you look at what Maya is talking about with women rights, we think about civil rights, we think about affirmative action which I mentioned. We think about the rights of people accused of terrorism and where Kennedy fit in. And we know how much it could change. And all of this coming out of the 2016 election. It was very close. The Electoral College winner got fewer votes. And are we looking at really the changing of America in a fundamental sense?

MEACHAM: Well, it`s actually a rear guard action to some extent. Having a Republican President as Jeffrey said, appointing originalist, when you have the demographic shifts, the cultural shifts where I think a lot of opinion, particularly among younger Americans tend toward the libertarian, I think with the great next force in American life is going to libertarianism which kind of goes along with these demographic changes. The court will either be a force to manage that change or it could be a reaction to it. And you know, there`s a trope in these things which is sometimes Presidents don`t know what they are going to get. But the court has been a force ultimately for good. There was Dred Scott, there was (INAUDIBLE) vs Ferguson, but then Earl Warren comes along and really forces the integration issue on a way to the political process that are not ready.

MELBER: But I would push you on whether the accurate thing you are saying is changing because certainly people didn`t know what they would get to some justices. But that led to the right saying no more suitors and this arguments that we are going to (INAUDIBLE) this. And again, Donald Trump saying I will pick off your federalist society list which has very serious religious, sexual, gender and I would argue racial components to what they want out of the court.

MEACHAM: Yes. And which underscores yet again why it`s so important. You know, I don`t know where you stand on this but John Roberts seems to be someone who is thinking about what people are going to say when they look at his oil portrait. And I think we saw that with the Obama care decision. We saw it less so yesterday. But this really, it`s so funny to feel these goal posts mover up and down the field. So I suspect if you would thought, if I told you 20 years ago that Anthony Kennedy was going to be the last great catcher in the rye, you would have thought, my God, how could that possibly be.

MELBER: Yes because he`s no Thurgood marshal, you are saying.

MEACHAM: Exactly. And so, it is a sign of how there is this disconnect between broadly put those in power on the Republican side and the way the country is changing. And that`s why I worry more and more --.

MELBER: Let me give Maya to response to that. I want to bring in Senator Blumenthal who is it is 6:57, would say patiently waiting.

But you hear Jon Meacham there say that and he sounds a bit like James Earl Jones reading 1984 and that Jon is such a classy, calm presence that the way he delivers this message would still, if you hear what he is saying, to a lot of people at home watching this would think OK. Everything is going to hell, although you put it very artfully.

MEACHAM: I have never been compared to James Earl Jones. I`m going home. I`m calling it a day.

MELBER: Because this is, to many people, when you look at the progress, just on marriage equality, say this was a huge deal and it affects people`s lives and it was a lot of people view that as a national progress and it could be ripped away by Donald Trump next month.

WILEY: What the election 2016 represented was the resistance to the games of the civil rights movement of the women`s rights movement, of the gay rights movement, of all the movements in the country who had spent the 20th century struggling for full inclusion.

What happened there, this is one of the reasons why the court became such an inflection point to the Trump base. And one of the things that has to happen now is Democrats like Republicans have done, historically, have to look at the court as a critically important power lever to say are we going to have the kind of leadership in our balance of the governmental power that is actually paying attention to whether or not, as Jon said, we have a body of government that is not elected, that`s appointed that will look at this from the perspective of a naturally evolving society that has to live out in the frame work of rights.

MELBER: And it goes to what courts that supposed to do which is day one at law school. There are things that are unpopular that involve constitutional protection that have to be enforced by the courts because the political system won`t do it and that also hangs in the balance tonight.

Every one stays. As promised, Connecticut Senator Richard Blumenthal who serves in the Judiciary Committee, who has been with us before.

Senator, listen to your colleague Dick Durbin about this vote.


SEN. DICK DURBIN, ILLINOIS: If he is consistent, using his own rule, we`ll wait for four months, have an election and let the American people decide what the majority in Congress will do.


MELBER: Are you demanding that standard tonight?

SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: I agree with Dick Durbin. The American people should have a voice. My Republican colleagues should respect their own precedent. A decision on confirmation should take place after the new Congress is seated.

MELBER: And what are you prepared to do if Mitch McConnell goes forward with what he said is he`s not going to follow his precedent. He I basically publicly admitted is hypocrisy that only applies to Presidents he doesn`t like.

BLUMENTHAL: Let`s remember first, Ari. The American people should and will understand the momentous importance of this choice for all the reasons you discussed earlier. This justice will have a decisive vote. Call it a swing vote or a majority maker. But we are in an unparalleled moment of assault on the rule of law when our fundamental liberties are in danger. And we are going to use every tool available and we will possibly be creative about some new ones in seeking to give the American people a voice. A decision of this historic magnitude requires more deliberate consideration than is possible in the few politically charged months between now and the election.

MELBER: As you know, sir, there are many people, including within the Democratic Party who feel the Democrats are always late and soft to these fights. Can you say tonight what you or your colleagues are prepared to do on the judiciary committee or in the Senate to enforce that? Because McConnell is being clear about what he is going to do. Are you prepared to shut down the entire Senate, shut down other business to prevent a vote until after the midterms or are you not repaired to go there tonight?

BLUMENTHAL: If the President nominates a right wing fringe ideologue, I believe there are colleagues on both sides of the aisle who will stand up to be counted. We will galvanize them and we will galvanize the American people and we will use tools, every one available, to make the public aware of what`s at stake here. It`s not only reproductive rights and privacy rights and voting rights and clean air and water right, but also the fundamental rule of law that`s at stake and the American people will understand it and will use every potential tool we have.

MELBER: Well, you know, that picks up on point that Maya Wiley, an attorney and an analyst of ours, was making these moments before you joined us. She was arguing that what we are seeing in a way that is so significant and that is bigger than some of the other controversies of the Trump era, the rhetoric and the tweet as we are seeing actually the fruits of the strategy to try to capture the court as a rear guard action to make up in the judicial process what wasn`t always able to be won by conservatives in electoral process and to try to roll back the rights of women and minorities. Do you agree with that analysis? Do you think that is over stated?

BLUMENTHAL: The agenda of all the potential nominees on some of the list I have seen is in fact to roll back Roe v. Wade and other deeply established, long accepted decisions of this court in defiance of one of the jurisprudential principles you are all well aware of it, that courts should respect long established precedents. The President has also said that he would nominate justices who would, and I`m quoting him I think directly, automatically overrule Roe v. Wade.

MELBER: Right.

BLUMENTHAL: That`s unacceptable.

MELBER: Stay with me. Maya, did you want to respond or have a question for the senator?

WILEY: Well, senator, you said something, I think two important things. One is if it`s a really ideological appointee, what`s ideological and what`s too ideological? And the second is what are some of the rule tools that you might identify that would actually potentially change the outcome and enable more voice for the American people?

BLUMENTHAL: Maya, I served as a law clerk for a Supreme Court justice, Justice Blackman, who by the way was the author of Roe v. Wade, the year before I clerked for him. And I also argued cases before the Supreme Court, four of them.

My basic philosophy is that I want a fair and open minded judge or justice who will consider the arguments that I make carefully but will adhere to the rule of law established precedent, principles and values of freedom and democracy that are at the core of our constitution. My philosophy is that a person of that intellect and integrity is an absolute requirement. And so, we will mobilize the American public and I`m confident that colleagues on both sides of the aisle will stand up and be counted because overruling for Roe v. Wade, decimating women`s health care or privacy rights or marriage equality or any of the other critical progress made over the last decade is really a definite threshold for me.

MELBER: And finally, I`ll say briefly we are over time. But as I ask you to respond in some of what our experts have said, Jeffrey Rosen, a longtime court watchers, you know, he went on record tonight on THE BEAT and said Roe v. Wade could be overturned based on this vacancy. Is that overstated or do you agree that Roe hangs in the balance as well tonight?

BLUMENTHAL: I think even more than Roe hangs in the balance and Roes does. Our fundamental rights and liberties are threatened now as never before. When the history of this era is written, Ari, I believe that the courts and our free press will be the heroes that preserve democracy because they stood strong. They disclosed what was happening. They prevented, for example, family separation and other abuses. And I am very, very hopeful that we can fight any right wing ideologue who chooses to roll back those basic protections. And yes, Roe v. Wade is at risk.

MELBER: Senator Blumenthal, a busy time for you on the judiciary committee on the day of a vacancy on the court. Thank you for making time for us.

My special thanks to Maya Wiley, John Meacham and Jeffrey Rosen for this discussion.

Coming up, we do turn more depth on this Roe v. Wade issue with some very special guests.

Later, a former Democratic Party chair Donna Brazile talks about how the Supreme Court fight is already changing election plans in the midterms. This is big time politics and how the nomination battle also could impact the Russia probe and determine whether Donald Trump ultimately does have to comply with the potential subpoena from Bob Mueller.

You are watching a special edition of THE BEAT on MSNBC.


MELBER: A busy news night. And there was some news on the show.

Moments ago, Senator Blumenthal who is on judiciary committee as well as longtime independent Supreme Court expert Jeffrey Rosen telling us yes, yes, now Roe v. Wade could be overturned. All of this, of course, because Justice Kennedy`s retirement pave the way for Donald Trump to nominate someone with very different views on choice, abortion right, women/s access to medical care.

Kennedy often the swing vote in many critical abortion cases writing the key ones and he has of course been in the situation that Donald Trump has flipped and flopped all over about on abortion, but nowadays as President, he says he is clear where he stands.


TRUMP: Roe Versus Wade has resulted in some of the most permissive abortion laws anywhere in the world. Under my administration we`ll always defend the very first right in the declaration of independence and that is the right to life.


MELBER: For a special discussion, I`m joined by Ilyse Hogue, President of Narrow Pro-Choice American. Wendy Davis, a former Texas state senator who many remember for filibustering for over 13 hours to block the anti-choice law that Kennedy actually helps strike down in 2016.

Ilyse, your view of the issues tonight.

ILYSE HOGUE, PRESIDENT, NARROW PRO-CHOICE AMERICA: Well, the American people are already mobilized, Ari. Our phones have been ringing off the hooks. We can`t keep up with the emails wanting to know what to do. And I need to be really clear in delivering a message, any attempts at appeasement will be disastrous.

The American people are depending on these senators to stand strong. They know what is in the balance. Every single senator needs to examine their moral conscious. Understand that women, families are health and well-being are in the crosshairs and it is game time. This is not a drill.

And I have to take one issue with one thing that Jay Rosen said, which I often agree with him. But Roe versus Wade being on the chopping block does matter. It is significant. This is not the anti-choice movement of 1970. We have 20 Ohio state legislatures signed onto a bill that would demand capital punishment for women seeking abortion. These are strange, terrifying dark times. The American people understand it. They are -- they know that Donald Trump made promises he intends to keep. The idea that he is going to turn around and become a sane rational human being and nominate a rational jurist is pure folly. These Senators need to listen to the American people and stand strong against this takeover of our court.

ARI MELBER, MSNBC HOST: Well, your flagging several important things including the contours of a political effort that is not just about the status of the fetus in American law but as you point out also is about how women are treated in this country and treated under law. To that end, I want to play for you in Wendy`s response what Donald Trump did when I guess he was sort of doing his marketing freestyle trying to figure out during the campaign what would happen to women if you changed these laws and he floated the idea of punishing the women take a listen.


UNIDENTIFIED MALE: Do you believe in punishment for abortion, yes or no as a principle?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: The answer is that there has to be some form of punishment.


TRUMP: Yes, there has to be some form.


MELBER: Wendy?

WENDY DAVIS, FORMER STATE SENATOR OF TEXAS: I mean it just takes my breath away, honestly. And unfortunately, I come from a state where I understand the reality of that. I know that there are a lot of people in the course of the last couple of decades who believed they could continue to vote for Republicans knowing that they were putting on the court anti-abortion perspectives but they kept saying there`s no way that Roe v. Wade will ever get overturned. The fact of the matter is, not only will it but to the point that Ilyse made a moment ago, we are looking down the tunnel of potentially criminal liability for women who are seeking to make decisions about their own bodies. And that sacred right to our privacy and our person is, of course, being jeopardized by Kennedy`s retirement today.

MELBER: And Wendy, something you`ve spotlighted for a long time, we`ll put up on the screen. In many states, you have -- this was 84 restrictions enacted just over the past year and a half since Trump took office. These are state-level efforts. Some of them are constitutional under the way the Supreme Court in that kind of the opinion allows certain restrictions. Some, of course, are not and they`re sort of trial balloons or tests. Walk us through where that fits into this because as you know, a lot of people are out in the country aren`t sure. They feel sort of dulled or confused even about which Trump thing is real and which is another you know rolling week-by-week controversy. How real is this tonight in your view?

DAVIS: It`s very real. The Guttmacher Institute has charted 29 different states that are either very hostile or hostile to abortion rights. And it may be the case that we won`t see Roe versus Wade overturned entirely. And I think Justice Roberts is going to be very sensitive to the public view of what the court does. But we also know those of us who work in this world of trying to protect women`s access to making their own decisions, we know that states are very clever about chipping away at a woman`s rights to accessing abortion and that, of course, is the point that you make here. And I believe they`re going to feel absolute permission to do that now that Justice Kennedy has announced his retirement.

MELBER: Right. And that`s a lot of the policy substance. Ilyse, I turn to the politics and the enforcement. What are you and your -- the organizations you work with and the people you represent, what`s your message to Democrats who do not ultimately do everything in their power to block the consideration of this Trump nominee before the midterms? Would you be prepared to oppose those Democrats in elections?

HOGUE: I mean, this is really a question for every single elected official. Seven out of ten Americans support legal access to abortion. As Wendy said, they don`t always vote that way. But even this week we saw two extremely high-profile women leaving the Republican Party vis-a-vis an op- ed in The New York Times. This is actually a question of human rights and morality. And while I think Democratic Senators owe it absolutely to the women who turn out particularly poor women, particularly women of color who are on the firing line to stand strong and demonstrate that you are our leaders, you will fight with everything you have, I don`t think it stops there. I think every single Senator needs to examine his and her moral conscience, understand that they have to win statewide elections in places like Nevada, like Arizona, where the majority of people understand what`s on the line and actually value personal freedoms and liberties as American principles.

MELBER: Ilyse Hogue and Wendy Davis, two leaders in this field, thank you. Up ahead on THE BEAT, it turns out Paul Manafort had secret Russian debt that`s revealed for the first time tonight and could be a big picture puzzle piece in the Mueller probe. Meanwhile, how does the Supreme Court fight affect the answers and the strategy that Mueller wants to develop? But first, there are Democrats now calling for a street fight and saying the political steps are key in this Supreme Court fight. Former party chair Donna Brazile is on that when we return in just 60 seconds.


MELBER: Our top story, Justice Anthony Kennedy retiring tonight which gives Trump another Supreme Court justice nomination. The selection of a Justice of the United States Supreme Court is considered I think we can all say one of the -- one of the most important events, one of the most important things for our country. They can swing different ways depending on who it might -- who that might be in the court so it`s always been considered a tremendous -- tremendously important thing.

MELBER: Tremendously important. Democrats agree with that and they say they may chuck the rulebook and start really fighting.


NICOLE WALLACE, MSNBC CHIEF POLITICAL ANALYST: Are you guys ready to maybe rip up some of the rules that have as Rachel said, limited Democrats?

REP. ERIC SWALWELL (D), CALIFORNIA: Yes, Nicole, and I know we`re ready because I`ve seen these candidates.

SEN. CHUCK SCHUMER (D-NY), SENATE MINORITY LEADER: People from all across America should realize that their rights and opportunities are threatened.

DONNA F. EDWARDS, FORMER U.S. REPRESENTATIVE, MARYLAND: We`ve been playing by the rulebook. We need to play by Street rules.


MELBER: Street rules, that`s what McConnell did in 2016 ripping away and hijacking Obama`s Supreme Court pick which then paved the way for an upset election and Neil Gorsuch to wind up on the court. Many people saying tonight yes, elections have consequences and all this news comes amidst another development. There were these elections last night and a huge primary upset, a self-described socialist at the Democratic Party beating the number four Democrat in the House with a very radical get-tough progressive message.


UNIDENTIFIED FEMALE: She`s right here. She`s looking at herself on television right now. How are you feeling? Can you put it into words?



MELBER: I`m joined by former DNC Chair Donna Brazile. Let`s start with your reaction there. Should Joe Crowley have lost and what does it mean that there`s a changing of the guard.

DONNA BRAZILE, FORMER CHAIRWOMAN, DEMOCRATIC NATIONAL COMMITTEE: Well, first of all, Joe Crowley is a great Democrat but this was a race in which the voters in that district New York 14th, they wanted change. She was a progressive voice throughout the campaign talking about issues that matter at the local level. He was the eldest state`s person -- and I`m not talking about age, I`m talking about experience -- talking about his record, she was talking about what she plans to do. He is talking -- he was talking about what he what he has done. This was a young really aggressive campaigner. I watched her on one of the debates where she really talked about these issues. She spelled out Medicare for all, she spelled out her policy positions on jobs, on tuition, making college more affordable. She was an unabashed progressive and I tell you something, it is a wake-up call and I hope Democratic incumbents are paying attention.

MELBER: Yes, and this is -- you mentioned because you know Joe Crowley. You`ve worked with him. He`s been on this show, our viewers may remember him and he`s done a lot of different things but this is a clear sign coming from the bottom up that people want a different reaction. And that is a big context for something nobody knew was coming today. My colleague Chris Matthews laying out the politics on that that if Democrats don`t do everything in their power to fight, it will be a political implosion on their side even before these pivotal midterms. Take a listen.


CHRIS MATTHEWS, MSNBC HOST: They will find a way to do it. There are ways to slow down votes. They will find that way or they will fail. And if they fail, they will lose their leadership. The party will not accept the failure on this front. If you lay down like the experts are saying and lay down and accept this as history that can`t be stopped. You`re going to see a political party in serious implosion.


MELBER: Is that right, Donna?

BRAZILE: Look, this is this is a very important Supreme Court position and I can tell you I`ve heard from the base of the party today they want the Democratic Party, the Democratic Senators to apply the same McConnell rule to this nominee. Now, remember, Mr. Trump has the right to nominate. The Senate is advising consent. Mr. McConnell said the American people should have the right to have input into the selection. I believe that we deserve input. As your recall Ari, that in 2016 Mr. Merrick Garland was selected. He was nominated by the President on March 16th.

MELBER: Well, we have that -- we have that. Let`s look at that and get your response. Here it is.


SEN. TED CRUZ (R), TEXAS: It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don`t do this in an election year.

BRET BAIER, HOST, FOX NEWS CHANNEL: Will Justice Garland, Judge Garland get a hearing?

SEN. MITCH MCCONNELL (R-KY), SENATE MAJORITY LEADER: No, I don`t think so. This nominee is not going to be considered.

Let`s let the American people decide.


MELBER: What do Democrats do with that rather damning hypocritical oppo video?

BRAZILE: Well, we continue to tell the American people this is the McConnell rule. It applied in 2016. It should apply in 2018 and we have to use every constitutional mean that we have within the Senate framework. And you know their rules a little arcane. We have to use every constitutional framework to make that point day in and day out. Look, what the Supreme Court did today and the public sector union case, what they`ve done this past week with regards to not just gerrymandering but a woman`s right to choose, this is a very important position and while very important seeing. While we respect the fact that the President -- the President who`s on the investigation, by the way, we respect the fact that he can nominate, the Senate advise and consent. I think that Senate Democrats must be on the case. We should apply the McConnell role and the McConnell rule is simple. Let the American people go to the polls in 131 days, only four months and that should give you know the Senate enough time for them to wait until we get a chance to get our voices in the process.

MELBER: Well, it`s a big political fight. And Donna, you know, Mitch McConnell`s music, you don`t usually sing from his songbook so something must be going on.

BRAZILE: The American people should have a voice in the selection of the next Supreme Court Justice. I`m going to keep tweeting this every day. I`m going to remind them why they stood up and oppose President Obama`s nominee. They say we don`t do this in election year. Well, this is an election year. And by the way, three-fourths of the nation`s governors will be elected this fall. This is a very important election. 36 Senators, all 435 Members of Congress, let the American people have a voice in this process.

MELBER: Well, you put it starkly. It is summer but it is not a summer off. It seems this is going to focus the minds of a lot of people going into a very consequential election. Donna Brazile, as always we appreciate your political insights.

BRAZILE: Thank you.

MELBER: Thank you. Could Bob Mueller ultimately be a part of what blocks Donald Trump`s Supreme Court pick? There are groups making the case already that Trump can`t pack a court that is about to rule on key questions in his criminal probe. That`s next.


MELBER: We`ve been reporting how the replacement to Justice Kennedy could have a big impact on your life on Americans lives around the country. What about on the President`s life? Does Donald Trump, for example, have the requirement to turn over evidence because you have to testify before a grand jury? And here`s a big question for this or any president. Under our system can a president be indicted? Clearly, those are all questions that only the Supreme Court decides in our system and we`ve seen that in past decisions involving Presidents Nixon and Clinton.


UNIDENTIFIED MALE: The Supreme Court has just ruled on the tapes controversy and here`s Carl Stern who has that ruling.

CARL STERN, JOURNALIST: It is a unanimous decision, Doug ordering the President of the United States to turn over the tapes.

UNIDENTIFIED MALE: The unanimous ruling now clears the way for Paula Jones to pursue her sexual harassment lawsuit against President Clinton. The court`s opinion written by Justice John Paul Stevens says the case involves unofficial conduct by an individual who just happens to be president.


MELBER: I`m joined by Richard Painter, a former White House Ethics Chief in a Republican Administration under George W. Bush. He`s now running for Senate as a Democrat in Minnesota. We haven`t gotten to the Russia probe much in this hour given all the other issues but do you view as a legal matter, given your experience the fact that the President is under this open criminal probe and the statements and things that he has done or allegedly done regarding that probe, should that enter in to his authority and the treatment of his nominee to fill this post?

RICHARD PAINTER, SENATORIAL CANDIDATE, MINNESOTA: Yes, it should. These United States House and Senate Judiciary Committee`s should have months ago started hearings to investigate the President`s violations of the Constitution, obstruction of justice, abuse of power and other crimes just as they did 1973 with respect to President Nixon. We are well past the point we weren`t with President Nixon when the House and Senate Judiciary Committee`s had those hearings. They have not done that. That is the top priority. And when they`re finished with those hearings and they report to the full House and the Senate with respect to President Trump and Vice President Pence, we will then know whether these two men will remain in office in which there`s a very good chance that they could both be out.

MELBER: All right, and Richard --

PAINTER: And I don`t see --

MELBER: Let me -- let me ask you this way. There are also reports in the Washington Post as you recall that even after picking Gorsuch, Donald Trump according to his own White House leaks basically then worried Gorsuch would not be quote loyal because he was critical of Donald Trump`s attacks on the judiciary. Do you have a concern that this President might view this pick in self-interested -- in a self-interested manner regarding the open probe and not thinking about this as an independent jurist?

PAINTER: Well, I don`t just have a concern about that, I know that that`s what the way he`s got to pick a justice because that`s the way he has talked ever since he ran for president and throughout his presidency. He does not want to participate within a democratic system set forth in the Constitution. And once again, it is the obligation of the House and Senate Judiciary Committee`s to be looking into his fitness for office and that of the Vice-President before they consider for a lifetime appointment on the United States Supreme Court, someone nominated by Donald Trump. And yes he is going to choose somebody to simply further his own agenda to make sure that his unconstitutional payments from foreign governments are permitted even though they violate their Emoluments Clause and to allow him otherwise to you know, to obstruct the Constitution.

MELBER: Right.

PAINTER: And I am amazed that they would consider a nominee from this president before they have those hearings that they have an obligation to have just as they did in 1973 with respect to President Nixon.

MELBER: I have to -- I have to fit in a break but the audience I think can see in the way you`re running your campaign and what you`re advocating the Senate should do, a difference to some of the current incumbents and last night we saw a change of the guard there and this is the party debate within the Democratic establishment right now. You`re putting your positions out there clearly and I think it`s what we`re going to see in these midterms because you raise some profound questions tonight. As always thank you Richard Painter for joining us. Up ahead, a shocker about Paul Manafort`s Russian debt.


MELBER: Some other big (AUDIO GAP) missed with all of the Supreme Court developments. Paul Manafort turns out exposed for a secret debt to guess who, a Putin oligarch. Manafort and his wife received a $10 million loan from Oleg Deripaska. That is the oligarch who`s even been sanctioned by the United States during the Trump era. Now, Manafort had reportedly offered Deripaska those personal briefings about the 2016 election. He later said he didn`t deliver them. But the new debt is another piece in the legal case that proceeds as Paul Manafort waits in jail.


ARI MELBER, MSNBC HOST: It is big night. And HARDBALL with Chris Matthews starts now.


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