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The Rachel Maddow Show, Transcript 2/15/2016

Guests: Nan Aron, Dahlia Lithwick, Kenji Yoshino

Show: THE RACHEL MADDOW SHOW Date: February 15, 2016 Guest: Nan Aron, Dahlia Lithwick, Kenji Yoshino

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

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

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

HAYES: You bet.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ARON: Thank you.

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

Stay with us. Lots more ahead.


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

As the news started to circulate, the national press struggled to catch up to the San Antonio paper and confirm the story. And in fairness, this started off as a startling story, right? It`s very rare for a Supreme Court justice to die in office. It`s happened one other time since the 1950s.

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

DAHLIA LITHWICK, SALON: Thanks for having me.

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

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

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

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

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

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

LITHWICK: That`s right.

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

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

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

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

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

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

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

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

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

LITHWICK: Thanks for having me, Rachel.

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

We`ll be right back.


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

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


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

JUSTICE ANTONIN SCALIA, SUPREME COURT ASSOCIATE JUSTICE: I don`t know. I wouldn`t want to go through it today. I`ll tell you that much.


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

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


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

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

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


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


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

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

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

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


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

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

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

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

REPORTER: That produced a few gasps in a courtroom.


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

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

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

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



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


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

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

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

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

MADDOW: Very unexpected circumstances --

YOSHINO: Yes, indeed.

MADDOW: With huge political consequences.

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

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

MADDOW: Yes, exactly.

YOSHINO: -- like in this particular historical moment.

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

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

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

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

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

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

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

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

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

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

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

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

YOSHINO: Thank you, Rachel.

MADDOW: Appreciate it.

YOSHINO: Always a pleasure.

MADDOW: Got lots more ahead. Stay with us.


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

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

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

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

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

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


Good evening, Lawrence.