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The Rachel Maddow Show, transcript 1/31/2017

Guests: Dahlia Lithwick, Kenji Yoshino, Jeff Merkley

Show: THE RACHEL MADDOW SHOW Date: January 31, 2017 Guest: Dahlia Lithwick, Kenji Yoshino, Jeff Merkley

  CHRIS HAYES, "ALL IN", MSNBC HOST:  And that is where we are, right?  We`re at the point of transparent obstruction on both sides.

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

That is "ALL IN" for this evening.

THE RACHEL MADDOW SHOW starts right now.  Good evening, Rachel. 

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

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

It`s a big tonight.  This is a big important historic news day.  Really good to have you here.  Thank you for watching the news on a night like this and thanks for watching it here. 

Antonin Scalia, "Nino" to his friends, he was beloved by his fellow Supreme Court justices.  Even the justices who disagreed with him the most, perhaps especially the justices who disagreed with him the most in terms of their day jobs, they loved his company.  Justice Scalia and Justice Ruth Bader Ginsburg, they shared a love of opera.  Justice Scalia and Justice Elena Kagan, they went hunting and fishing together. 

Justice Scalia was deeply and antagonistically and provocatively conservative.  He was also witty.  He was also apparently really fun to be with and he lived an active life.  He also had heart trouble. 

And last February, almost a year ago, he died in his sleep.  He was at a swanky hunting lodge in Texas only about 30 miles from the U.S./Mexico border and it was a shock when he died.  It was a very, very sad loss for his family and for his many friends.  It was also, of course, a political shock because his death was a surprise and it opened up a surprise vacancy on the Supreme Court. 

And with almost exactly a year left in his presidency, we learned that Barack Obama would get to name a court nominee to fill the seat vacated on the court by the death of Antonin Scalia -- or not. 

Even before former President Obama named his nominee, even before he named Judge Merrick Garland, Republicans announced that they would hold open the Scalia seat.  They would not hold hearings for any Obama nominee, no matter who the president picked, they were not going to consider his nominee.  Honestly, because the president is a Democrat and they didn`t believe they had to and so they believed they would not, thank you very much. 

And that has never been happened in our country.  Not like that.  But tonight, that radical decision, not a radical decision by Donald Trump but a radical decision by the Republican Party in the Senate.  Tonight, that radical act by congressional Republicans, it bore fruit -- awkwardly phrased fruit, a little hiccup in the execution in the end, but still. 


DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  Today, I am keeping another promise to the American people by nominating Judge Neil Gorsuch of the United States Supreme Court to be of the United States Supreme Court. 


MADDOW:  Nominating judge Neil Gorsuch -- yeah.  It was -- the actual announcement was a little garbled, but the president tonight did succeed in nominating a federal appeals court judge named Neil Gorsuch to fill the seat on the Supreme Court that was vacated almost a year ago by the death of Antonin Scalia but Republicans held that seat open for all of this time because they would not allow hearings on a nominee from a Democratic president.

It is, I know that we all know this story because we all lived it, right?  But it is -- just step back from it, it is a remarkable series of events that got us here and now, we`re here.  There are protesters outside the court tonight. 

They were ready to go even before the name Neil Gorsuch was announced tonight.  They were there to protest this nomination not necessarily because of anything specific about him, because nobody knew it was going to be him until 8:00.  Those protesters were there and set to be there because of the circumstances surrounding this vacancy on the court and surrounding this nomination. 

Democrats in the Senate even before Neil Gorsuch was announced tonight, Senate Democrats have openly mulled whether they should try to reciprocate in kind what the Republicans did to President Obama with holding this seat open for almost a year.  As to whether or not Democrats have the power to do that -- well, the senator who has led the charge and said that he will lead a filibuster to hold this seat open because this is a stolen seat, that Democratic senator is going to be joining us tonight live in just a few minutes.  You will want to see that. 

As for the specifics of this nominee, though, judge Gorsuch is most famous nationally for his role in a controversial case brought by the Hobby Lobby retail chain.  The Hobby Lobby retail chain for years they had provided health insurance to their employees that included coverage for various kinds of birth control.  But then, insurance covering birth control became a factor and a point of discussion and a point of controversy in Obamacare, in the Affordable Care Act.

And once that happened, Hobby Lobby decided that they had an objection on religious grounds that they had religious beliefs as a business and those religious beliefs were now being violated by the Affordable Care Act, by the regulations around insurance and the Affordable Care Act even though they had been providing birth control coverage through their employees` insurance all along.  They just discovered these religious objections once it became a controversial issue in the Affordable Care Act. 

It was a strange case.  It was a controversial case.  The retail store`s claims succeeded at the Supreme Court but the way the case got to the Supreme Court was in court through Neil Gorsuch`s lower court where he sided with them on their religious objections. 

Judge Neil Gorsuch does not have a substantial record specifically on the hot button issue of abortion.  So, that may be an interesting thing in terms of how both sides react to his nomination. 

Judge Neil Gorsuch was confirmed to his current seat on the appeals court by a voice vote in 2006.  The president described that as a unanimous vote and it`s a kind of unanimous vote but it mostly means people don`t formally vote, it just got approved. 

Judge Gorsuch is from Colorado.  Judge Gorsuch`s family has a famous political history because his mom ran the EPA for Ronald Reagan in a tenure that ended really, really badly and is a fascinating story.  But that was his mom. 

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

Joining us now is Dahlia Lithwick, senior editor and legal correspondent at "Slate" magazine, someone I always want to turn to as nights like this.  Someone we booked before we knew it was going to be Neil Gorsuch. 

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

DAHLIA LITHWICK, SLATE:  Thanks, Rachel.  I`m assuming you booked someone else and it was right down the wire who you called, right? 

MADDOW:  Well, I was going to summon you both and make you stand hear wearing the same outfit then I was going to have someone in a ball gown pull a spangly curtain reveal one of you but we don`t the budget for that kind of thing. 

Neil Gorsuch was a -- we`ve known for a few days that he was on the shortest short list, that he might be one of the picks.  What`s your overall view of this choice by the president? 

LITHWICK:  In a way, Rachel, it`s hugely surprising because if you think about the president`s -- most of his cabinet picks, he`s picked in some sense the most nihilist choice, right?  The person who he hates the institution they`re going to head up in some fundamental way.  That is not Neil Gorsuch.  I mean, this is not a bomb thrower.  This is not someone in any way who doesn`t believe in the judicial branch and in that sense it`s surprising because, you know, I think disrupters are kind of Trump`s things.

So, this is an incredibly solid, respectable, conventional pick that anyone would have made.  In one sense, it`s surprising for Trump because Trump promised us a blue-collar, non-Ivy non-fancy pants guy, and Gorsuch was actually the outlier on his 21-person short list for being the one fancy, Ivy pedigree, blue blood guy.  So, in that sense, it`s a funny pick, but in every other sense, pretty conventional. 

MADDOW:  He`s sort of in the same way that the president attacked Goldman Sachs for having captured Hillary Clinton and having been the great downfall of Ted Cruz`s ties to Goldman Sachs and then he brings on six people from Goldman Sachs into the administration.  We are seeing that as a trend in terms of his choices.

He is famous for that Hobby Lobby case, for his role at the appeals court level while that case made its way to the Supreme Court.  I described that in a very short way. 

First of all, tell me if I got that right and tell me whether that might be important in terms of any controversies around him, or any important insight into what he might be like? 

LITHWICK:  Look, I think you made this point and it`s important.  The two litmus tests that Trump promised on the campaign trail were somebody who was going to support guns and someone who was going to end Roe v. Wade, and in a strange way, he picked a guy who has no actual record on those issues. 

You can sort of dance around them, but in a weird way give than he pledged that those were his nominees, unless he knows something we don`t know, he`s put Gorsuch in a funny position.  There`s not a tremendous record. 

I will say that on Hobby Lobby and abortion, we know that Gorsuch not only voted as you said, against the contraception mandate, we know that -- his sort of academic interest, his big book he`s written and thought about, all has to do with end-of-life issues, physician-assisted suicide, the sanctity of life.  So, I think it`s a useful template to think about how he might think about abortion.

But certainly, you know, squarely on these issues, we don`t have a ton of guidance.  We know generally he is Scalia-like both in his approach, his sort of minimalist, textualist approach and Scalia-like in his politics, but on these two issues, he`s a bit of a cipher. 

MADDOW:  Specifically on that abortion issue, just, Dahlia, because abortion has been such a point of contention for nominees of both parties and they go through this kabuki theater of pretending like they`ve never thought about it before when they`re inevitably asked about it at their confirmation hearings, we`ve been hearing noise that anti-abortion groups might not be totally comfortable with him.  That in the ambiguity, there might be some concerns on the right that he`s insufficiently anti-abortion. 

Is there any reason to suspect that? 

LITHWICK:  I don`t think there`s reason to suspect that but as I suggested, Rachel, I think the fact that Trump didn`t pick someone who looked like a Bill Pryor who he promised us, a culture warrior who was coming out blazing for Roe and he didn`t give that.  I would not be surprised if some of the anti-Roe groups are really pretty perplexed that he didn`t make good on the one promise that got them out to the polls for someone that in other ways they didn`t like very much at all. 

MADDOW:  Dahlia Lithwick, senior editor, legal correspondent at "Slate" magazine -- I`m sure we will be talking more about Neil Gorsuch in days ahead.  Thanks for being here, my friend. 

LITHWICK:  Thanks, Rachel. 

MADDOW:  1789, President George Washington got to be the first president to make a nomination to the United States Supreme Court.  1789.  There, of course, are benefits to being first.  When George Washington got to make his Supreme Court nomination, he got to nominate six justices all at once.  Brand new court, got to fill it up. 

And when he made those six nominations in two days the United States Senate confirmed all six of them.  That`s how we got the very first Supreme Court and every president since George Washington would love to be treated like that, right?  They`d love to have everybody confirmed in two days and pick every justice on the court.  But there will never be another George Washington. 

That said it isn`t usually that hard for presidents to get their nominees confirmed speaking as a general matter.  I mean, in American history, the vast majority of Supreme Court nominees have been confirmed, and the vast majority of those confirmed have been confirmed by a lot, by big overwhelming votes, there`s only been a handful of exceptions in modern history. 

Reagan nominee Robert Bork, he was famously rejected by the Senate in 1987.  In the George H.W. Bush administration, in 1991, Clarence Thomas, he was almost rejected by the Senate.  He squeaked by on a 52-48 vote, which is the narrowest approval margin for a Supreme Court justice in modern history. 

There was also a weird period a little bit before that, 1968, 1969, 1970, that was like a Bermuda Triangle for the Supreme Court.  This was after LBJ`s triumphant nomination of Thurgood Marshall to be the first African- American Supreme Court justice.  After that, things went off course and over the next few years, with Johnson at the end of his firm and then Nixon at the beginning of his time as president between them, the two of them air balled on four different nominees for the Supreme Court who were all rejected or forced to withdraw in scandal.  But again, I think of that as a weird Bermuda Triangle period in Supreme Court nominees. 

There are exceptions.  There was that weird time period.  There was the tough time for Clarence Thomas.  There was Robert Bork.  There are these exceptions.

But those exceptions proved the more general rule, that if you get to the point where the president is nominating you to be a Supreme Court justice, and the Senate is considering your nomination to be a Supreme Court justice, you are likely to get through. 

I mean, look at the justices confirmed in the late 20th century.  Anthony Kennedy, 1987.  The vote on him was 97-0.  David Souter, approved in 1990.  The vote on him was 90-9.  Ruth Bader Ginsburg, approved in 1993, 96-3.  Stephen Breyer, the following year, 1994, his vote was 87-9. 

That`s how the last century ended.  Overwhelming votes on what Supreme Court nominees, those huge votes, 90-vote margins.  That`s what they used to get.  Like liberals, conservative, it didn`t matter.  Everybody got those overwhelming numbers. 

But then, we hit the millennium, right?  This century kicked off with Bush v. Gore.  With the Bush v. Gore decision in the year 2000, the immensely controversial decision in which the Supreme Court actually chose the president in a 5-4 vote where the votes lined up precisely on ideological lines, conservative justices all voted for the Republican, liberal justices all voted for the Democrat, and because there were five conservatives and only four liberals on the court, that`s the reason why we got President George W. Bush instead of President Al Gore. 

And then to rub salt in the wound, for the first Supreme Court pick of the 21st century, the first Supreme Court pick after that, President George W. Bush chose one of the lawyers who had advised the Bush camp on the Florida recount in Bush v. Gore.  Talk about chutzpah. 

Ultimately, John Roberts did very well at his confirmation hearing.  He did get confirmed.  The vote was 87-22 which is narrower than most votes historically but not bad. 

Then, perhaps a little high on life over how well that went with John Roberts, despite how bold that pick was, maybe a little overconfident, maybe feeling too many of his oats, we then got the Harriet Miers disaster.  Remember that?  What was that about? 

President George W. Bush after his success with John Roberts, he nominated his old buddy, his old friend from Texas whom he had brought to Washington to work in the White House counsel`s office.  I mean, nobody had any idea why he nominated Harriet Miers other than the fact that he liked her and they went way back. 

That nomination was greeted with bipartisan bafflement in Washington.  Conservative groups ran advertisements attacking the Harriet Miers nomination.  Conservative groups.  And Republicans all spoke against it.  Democrats didn`t even have to fight.  That nomination lasted precisely 24 days before it was withdrawn.  And lesson learned apparently.

Then, we got Samuel Alito.  Ultimately when the vote came for Alito, there were 42 no votes against him, all from Democrats.  The most no votes against a successful nominee since Clarence Thomas. 

Then, thereafter we got a new president, and we got President Obama`s two nominees, Sonia Sotomayor and Elena Kagan, neither of whom was particularly controversial as a pick, but more than 30 Republicans voted no on each of them anyway. 

You see the overall trend here, right?  No Supreme Court nomination is exactly like the ones that preceded it but you see the trend here.  It has become hardener recent years to get confirmed as a Supreme Court justice, particularly post-Bush v. Gore.  We just don`t see the overwhelming 90-vote margins that we saw as recently as the Clinton administration.

And that process of the average number of no votes creeping up and up and up, votes for the nominees getting more and more partisan, that process was already well under way before Justice Antonin Scalia died last year unexpectedly on February 13th.  That was almost a year ago now.

And immediately after Justice Scalia died, literally the night we learned of his death, Republicans in the Senate came out and said they weren`t going to allow a vote on any nominee to replace him.  President Obama ended up the following month nominating Merrick Garland anyway, the definition of a non-controversial moderate choice. 

The Republicans never even held a hearing on him.  They instead have held open that seat for more than a year simply because they didn`t want a Democratic president to get to appoint someone to the court.  Several Republican senators said before the presidential election that if Hillary Clinton won the election, they would continue to hold that seat open for four years, for eight years if necessary because Hillary Clinton is a Democrat, and new Republican rule, Democrats don`t get to appoint Supreme Court justices. 

Republican senators now openly hewing to the newly defined Washington, D.C. principle that only Republicans are allowed to appoint Supreme Court justices now. 

The nominating process was already getting harder than it was historically and way more partisan, and that was before the Republicans held a seat open for a year for 100 percent partisan purposes which is the only reason the new president had this seat to fill tonight announcing that the nomination will go to Neil Gorsuch. 

This was going to be hard anyway, right, just look at the history.  But now, I think it is safe to assume that Democrats are going to make this as difficult as humanly possible, even before we knew who the name of the nominee would be.


MADDOW:  The date was August 4th, 2006.  Police in Lafayette, Colorado, made their way to West South Boulder Road and they were investigating report of pot plants, marijuana plants that had been reported growing in that area.  And the Lafayette, Colorado, police arrived on that scene, Friday night, and they found a 22-year-old named Ryan Wilson. 

And Ryan Wilson admitted to police some of the pot plants in the field were his, but then he decided to bolt.  He started to make a run for it.  And one of the police officers on the scene shot Ryan Wilson with a taser, shot him in the head, and Ryan Wilson died that night.  County coroner said he died of an irregular heart beat caused by the combination of the exertion from running from police, the shock from the taser and a heart condition he had had since birth. 

The following year, Ryan Wilson`s parents filed a wrongful death suit.  His parents argued that Ryan Wilson didn`t do anything that could be construed as violent.  The suit claimed that the officer didn`t warn Wilson he was going to use the taser, that when he shot him with the taser hitting him in the head and then his left side, they claim that was excessive force that shouldn`t have been used against their son that night. 

In 2013, that lawsuit ended up at a federal appeals court, the 10th Circuit U.S. Court of Appeals.  A three-judge panel on the appeals court threw out the lawsuit, threw out the parents` lawsuit, threw it out -- the lawsuit was against the city of Lafayette, against the police officer in question and the judge wrote in that decision that the officer who had shot Ryan Wilson with that taser, that officer had qualified immunity which protects government official doing their jobs from civil liability for the damages and the parents` case was thrown out. 

The judge who wrote that opinion was Neil Gorsuch, President Trump`s nominee to the United States Supreme Court as of about 84 minutes ago.  He`s somebody whose record we`re about to find out a lot more about starting tonight. 

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

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

KENJI YOSHINO, NYU LAW SCHOOL CONSTITUTIONAL LAW PROFESSOR:  Thanks so much for having me.  Great to be here. 

MADDOW:  We had telegraphing it might be Judge Gorsuch.  What`s your view - - first of all, just big picture as to whether this is a surprising nomination?  Whether this is a provocative nomination?  What do you think? 

YOSHINO:  I don`t think it`s that provocative when you compare him to the other two candidates whose names were rooted about.  So if you compare him to a Pryor, to a Hardiman.  But I think what we have to insist on comparing him to is Merrick Garland.  I don`t want that to be lost. 

That we`re going into a period, where, you know, as you said in the earlier segment, we had a Supreme Court back in the beginning that was very fragile institution.  So, yes, you know, George Washington got to appoint all of the justices.

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

YOSHINO:  But let`s also remember that Chief Justice Marshall was very, very careful about husbanding the credibility of the court because it was a weak institution.  People used to leave all the time to become state court justices or diplomats, something that would be unthinkable today because it`s the most prestigious position --

MADDOW:  The first chief justice left to be a governor.  You would never imagine that happening now. 

YOSHINO:  Yes.  And so, what I`m worried about -- and also Chief Justice Marshall used to insist that opinions be only in because he was so worried that anything less than unanimous opinion would sort of weaken the credibility of a very fragile and nascent institution. 

What I worry about when I see those graphs about how conflicted we are with regard to these confirmation hearings is that the Supreme Court may not be the rock of Gibraltar that you and I grew up with, right?  It may not be this completely independent, completely respected, really the most respected of the three branches if you believe the public opinion polls, but rather may be seen as another partisan institution precisely because, you know, with all due respect the president is treating this nomination as a bit of a reality show, but also and more deeply the fact that Merrick Garland didn`t get a hearing. 

MADDOW:  Yes, it seems to me like the truly radical thing that has happened is the Merrick Garland nomination blanked by the Republicans.  I really feel like the -- I mean, I didn`t mean to say it this bluntly but I don`t know any other way to explain the principle that they apply to that, which is that a Democratic president should not be allowed to appoint a Supreme Court nominee, not when Republicans are in control of the nomination process because they control the Senate. 

That was the truly radical act.  It seems like the choice of judge Gorsuch is a relatively mainstream choice that you might expect from any Republican president, but the circumstances around this nomination are still radical because of the garland nomination, because how long the seat has been held vacant, and because of that partisan precedent or the breaking of non- partisan precedent which we`ve now seen. 

YOSHINO:  Exactly.  And so, I think that when we sort of get to the game of like comparing him to the other two candidates in this particular cycle, you know, we`re already sort of losing the real debate, which is like, let`s compare him to the person who actually was nominated by the president, Merrick Garland. 

MADDOW:  Do you think that his -- there are things in his history that will be substantively controversial or subject of acute questioning or concern once he goes through this process?

  YOSHINO:  Absolutely.  I think this Hobby Lobby decision he was still extremely controversial.  It essentially says, you know, corporations are persons who can exercise religions and on those grounds can engage in the religious right to discriminate from laws that you or I would have to follow.  So, you know, there`s the health care contraception mandate promulgated by the Obama administration and that Hobby Lobby, which is a corporation, says we don`t to adhere to that because of our religious beliefs. 

So, that`s not the kind of classic religious accommodation claim we believe that is brought forward by individuals.  It`s really a for-profit entity bringing that.  So that`s actually a troubling decision.  This qualified immunity. 

I don`t know if you`ve been watching this, but there`s an increasing drum beat among conservative scholars to get rid of qualified immunity all together because it gives too much of a bye to governmental officials.  So, the qualified immunity case I think is going to be quite controversial.

And then, also, the Hobby Lobby case is not a standalone with regard to religious liberties.  He also -- he dissented from denial of a hearing on banc, which is a dissent from a decision not to rehear a case in a Little Sisters of the Poor case, which was kind of a crazy case from my perspective.  So, you know, it may be that there`s reasonable views or reasonable room to debate this, but from my perspective, this just seems crazy because the Obama administration says, if you want exemption from the contraception mandate sign this form and essentially, the objection of the Little Sisters of the Poor was signing the exemption form itself was a form of complicity.  So, they refused to do it.

So, they were opting out from opting out, and he believed they had a case.  So I do think there`s a religious right to discriminate and different rules apply to believers and to nonbelievers, or people who belong to minority faiths is something we`re going to be hearing a lot of in the coming days. 

MADDOW:  Kenji Yoshino, NYU Law School professor of constitutional law -- as always, incredibly clarifying.  It`s really good to have you here, Kenji.  Nice to see you.

YOSHINO:  Thanks so much.

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


MADDOW:  We`ve been talking about whether Democrats will oppose the Supreme Court nominee just nominated by President Trump.  Elizabeth Warren, senator of Massachusetts, has just announced that she will oppose this nomination. 

Quoting from the statement that has just come out from Senator Warren, "President Trump had the chance to select a consensus nominee to the Supreme Court.  To the surprise of absolutely nobody, he failed that test.  Instead, he carried out his public promise to select a nominee from a list drawn up by far right activist groups that were financed by big business interest. 

Judge Gorsuch has been on the list for four months.  His public record which I have reviewed in detail paints a clear picture.  Before even joining the bench, he advocated to make it easier for public companies to defraud investors. 

As a judge, he twisted himself into a pretzel to make sure rules favorite giant companies over workers and individual Americans.  He sided with employers who deny wages, improperly fire workers, and retaliate against whistle blowers from misconduct.  He`s ruled against workers in all manner of discrimination cases.  He`s demonstrated hostility toward women`s access to basic health care. 

For years, powerful interests have executed a full scale assault on the integrity of our federal judiciary, trying to overturn -- excuse me, trying to turn the Supreme Court into one more rigged game that works only for the rich and powerful, they spent millions to keep this seat open and Judge Gorsuch is their reward."

"Based on the long and well-established record of Judge Gorsuch," she concludes, "I will oppose his nomination."

Elizabeth Warren putting herself on the record tonight.  We`re seeing a number of senators come out and say what their intentions are around this nomination.  One of the senators who says Democrats should hold this seat open, Democrats should refuse to vote on any one other than Merrick Garland for this seat because it`s a stolen seat, that Democratic senator joins us live, next.


MADDOW:  Summer of 1968, the presidential election was looming in the fall.  And because when it rains it pours in politics, that summer, summer of `68, the chief justice of the Supreme Court decided that he would like to retire.  Chief Justice Earl Warren told President Johnson that he wanted to retire. 

Now, LBJ was at the end of his term, he was deeply unpopular, he decided not to run for reelection.  And LBJ devised a plan for what he was going do about that chief justice seat.  He decided that he would elevate to the chief justice position a justice who was already on the Supreme Court, a justice who`d already been on the court for three years, his friend Abe Fortas.

And Republicans were not hot on Abe Fortas because of his liberal views, because of his ties to President Johnson.  But their support, their potential support for Abe Fortas being chief justice, that cratered when it was revealed that Justice Fortas had accepted a bunch of speaking fees from private donors for a series of college lectures, which he should not have done.

And so, they filibustered him.  They blocked his nomination for four days.  On October 1st, 1968, a month before the election there was an attempt to beat that filibuster and the attempt dramatically failed.

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


UNIDENTIFIED MALE:  Fortas lost.  The vote was on cloture, on stopping the filibuster, on enforcing members to stop talking, to sit down and to decide whether to confirm Fortas or not.  They took a vote on ending the filibuster and a Senate clerk announced the result 45-43.  That was 14-vote short of the two-thirds of the senators present.  The Democratic leader, Mike Mansfield, then said the appointment would be laid aside temporarily and the Senate would go to other business. 


MADDOW:  That was October 1968.  That was so long ago, we didn`t have C- Span, we had Senate sketch artists like it was a cameras banned from the courtroom situation.

October 1968, that is the last and only time a Supreme Court nominee was successfully filibustered in modern times.  The last time an opposition tried to mount a filibuster was in 2006, the Sam Alito nomination.  Twenty- four Democrats led by John Kerry and Ted Kennedy supported by Hillary Clinton and Barack Obama, in `06, they attempted to filibuster Alito`s nomination to the court, but 20 Democratic senators wouldn`t go along and that effort failed.  So, again, the last time they were able to pull this off was `68.

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

Prior to tonight`s announcement about who the nominee would be for the Supreme Court seat, before we knew it was going to be Neil Gorsuch, Republican Senate Leader Mitch McConnell had a suggestion for Democrats -- don`t filibuster. 


SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER:  What I would suggest from our Democratic friends is that the nominee be handled similarly to President Clinton`s two nominees in his first term and President Obama`s two nominees in his first term. 


MADDOW:  President Obama`s two nominees in his first term, I`d like to get really specific, right?  Because they don`t want to talk about the third nomination that President Obama made.  No mention of Merrick Garland, President Obama`s third nominee who faced this unprecedented blockade by Republican senators who refused since last March to even hold a hearing on his nomination despite the fact that Merrick Garland was a completely non- controversial nomination. 

Well, tonight the new Republican president has announced that Supreme Court Judge Neil Gorsuch is his choice for that Supreme Court that Merrick Garland was supposed to be the nominee for. 

After Neil Gorsuch was announced as the nominee, we got this statement from the Democratic Leader Chuck Schumer.  Quote, "The Senate must insist upon 60 votes for any Supreme Court nominee, a bar that was met by each of President Obama`s nominees.  The burden is on Judge Gorsuch to prove himself to be within the legal mainstream and in this new era willing to vigorously defend the Constitution from abuses of the executive branch."

The headline there, maybe not surprising. but the Democratic senator affirming they`re going to insist on a 60-vote threshold.  Republicans don`t have 60 votes in the Senate.  This means Democrats are going to filibuster. 

Senate Democrats were already under intense pressure from Democratic voters who have been loudly upset with Democrats casting votes for Trump cabinet nominees.  That pressure will intensify on Democrats now that we`ve got a Supreme Court nomination as well, even before tonight, even before we got the name tonight, one Democratic senator had been standing up loudly and overtly saying that he would filibuster pick regardless of who was because, he said, Republicans effectively stole the Supreme Court seat from President Obama. 

The senator who has been making that case all along is Oregon Senator Jeff Merkley.  Joining us now is Jeff Merkley.

Senator, thank you very much for being up late and being here with us on nomination night.  Really appreciate it.

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

MADDOW:  Well, does the announcement of Judge Gorsuch`s name, his remarks tonight, the President`s introduction of him tonight, does that change your mind at all about your desire to filibuster this nomination?

MERKLEY:  No, not at all.  I mean, the point I was making was we must not forget that this is not a normal consideration.  This is a seat that was stolen from the former president Obama.  That`s never been done in U.S. history before. 

And to let this become normal just invites a complete partisan polarization from here to eternity.  At what point does a majority say in the future, we will not let someone make a nomination two years into their four years, or three years into their four years, or their entire four years? 

So, I made it clear that I was going to insist on a 60 vote standard and that I would vote against closing debate.  So insisting on 60 votes is the way you start what we refer to as a filibuster, and then the question is, are there going to be enough votes to shut it down.  And of course my hope is that there won`t be.

MADDOW:  How many senators do you need to join with you in order to make it so that Judge Gorsuch has to clear 60 votes in order to get confirmed?  How many people do you need -- 

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

MADDOW:  There are 48 Democratic senators -- 

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

MADDOW:  So, we`ve got 48 senators who are either Democrats or who are caucusing with the Democrats.  Do you have any sense of your colleagues` views towards this and whether or not you think you`ll clear that 41 vote number?

MERKLEY:  Well I suspect we`re going to hear a lot of statements from colleagues.  But the colleagues who are waiting to see if possibly the President would nominate someone like Merrick Garland are going to be sorely disappointed tonight.  This is from the extreme right, someone who has said corporations are people, made that case.  Someone who has proceeded to be against class action suits which are the only opportunity for fairness for a lot of citizens. 

I mean, you go by case by case by case.  This is about the powerful and the privilege and oppressing the rights of the people.  I think there`s going to be an enormous number of senators who decide that this person is not suitable because they will not honor our "We The People" vision of government embedded in our Constitution.

MADDOW:  Senator Merkley, I`ve sort of been reading the tea leaves on this a little bit trying to get a sense of where the Democrats in the Senate are on this, and whether or not this is a time when we might expect a Democratic effort that would be a big deal, that would be a heavy lift in political terms.  Not just because of the qualifications of this nominee, but because it would be setting a new standard for what it means to get a Supreme Court Justice. 

I look at the size of those protests in the streets and I look at the mood of the Democratic base right now, I look at the reaction of Democratic voters and protestors to what the new administration is doing and who they`ve nominated to the cabinet and I see a lot of momentum.  I see a lot of energy. 

How do you know whether or not it`s going to translate into this working?  Are you worried that if you try and fail, Democrats will be showing weakness here?

MERKLEY:  Well, I never worry about trying and failing.  You have to fight the battles you believe in, and that`s what enables you to win is to undertake that battle.  I can tell you that this weekend, I had two town halls on Saturday. 

First, I had 600 folks crowded into a gym that could only fit about 400.  It was almost scary.  And I thought, I`m never going to see another town hall like this.  I went to my second town hall and 3,700 citizens showed up to weigh in about how angry they are, how frustrated they are about how America has gone way off track under just the, at that point 10 days of this presidential leadership by Trump.

MADDOW:  Senator Jeff Merkley of Oregon, about to be involved in one of the political fights of your life, sir.  Thank you for helping us understand tonight.  I appreciate you being here.

MERKLEY:  You`re so welcome.  Thanks.

MADDOW:  All right. 

This is going to be interesting.  I mean, what Jeff Merkley is taking about here, what Chuck Schumer now says is going to be the Democratic strategy is to get 41 Democrats to line up with the filibuster.  They`ve got 48 Democratic or caucusing with the Democratic caucus senators in the Senate.  If they can get 41 of the 48 to side with this strategy, they can, at least theoretically, block this nomination from the minority. 

It would be a radical move, it would change the way that Supreme Court nominees are approved in this country, sort of been changing on its own anyway.  But this is going to be a fascinating thing to watch and it will be fascinating to see if those protesters out on the street, all those people showing up in Senate offices and town hall meetings and all those things over the country, whether they`re going to backstop their Democratic senators on this strategy. 

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


MADDOW:  Got a very interesting story coming up next about the famous family political history of the nominee, Judge Neil Gorsuch who the president just announced fn tonight as his nominee for the Supreme Court seat after the death of Antonin Scalia.  That family history is very interesting.  It`s sort of one of the storied tales of the Reagan administration that I think has been a little bit lost to history, but it`s about to come back because of Neil Gorsuch.

We`re also keeping an eye we just lost the shot just a moment ago -- but we`re also keeping an eye on a lot of protesters who have gathered tonight outside the Supreme Court building, both in anticipation of this announcement tonight.  And since Neil Gorsuch was named as the nominee, we`re keeping an eye on that as we`ve had daily and nightly protests against some aspect of the Trump administration every day for the last ten days.  We`re now seeing that tonight in response to this nominee.

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


MADDOW:  When I was a kid, I was obsessed with Jacques Cousteau.  Jacques Cousteau, pioneer in ocean exploration.  He helped invent scuba gear, which opened up whole new worlds of human interaction with the sea.  Jacques Cousteau ultimately dedicated himself to documenting the ocean, to showing us what he found so fascinating and so fragile about it.  Jacques Cousteau films won three Oscars, when ten Emmys. 

And not surprisingly, because of his interest and his expertise, he became a pretty vocal and world famous environmentalist.  And in 1983, Jacques Cousteau testified before Congress about a bananas plan that had been developed by the U.S. government, a plan to burn toxic waste at sea. 

At the time, there was a plan by the U.S. government that they would set aside a rectangle, a 30-mile by 40-mile rectangle off the coast of Delaware and Maryland.  And that would be the place where we`d put one of the nation`s biggest waste disposal companies on ships to burn toxic substances.  They were going to burn these toxins in huge incinerator ships right off the coast of Delaware and Maryland.  Because who cares?  It`s just the ocean. 

The amazing thing is that a major proponent of this plan was the EPA.  They thought it was a great idea.  The agency called it well developed and understood technology.  If that sounds crazy, it`s because that`s crazy.  And that`s what the EPA was like under President Ronald Reagan. 

And the now mostly forgotten scandals and failures of his time in office, one of the ones we are now remembering and that is resurfacing in history is the way the EPA was run at the beginning of his presidency, specifically under this EPA administrator, Anne Burford. 

Anne Burford was the first female administrator of the EPA.  She didn`t last long.  She had to resign after 22 months on the job.  There was a lot that was controversial about her tenure. 

After all, there was the idea to use big swaths of the ocean to burn our toxic waste.  But one of the biggest controversies of her tenure involved superfund sites because this is how President Reagan and his EPA administrator handled superfund sites. 


REPORTER:  The people of Glenn Avon, California, may owe their lives to the big trucks that haul away spring water from the edge of town.  The water is laced with lead and PCPs and other poisons.  Legacy of a dump called a string fellow acid pits, and that the trucks, paid for by the state of California, weren`t hauling off thousands of gallons of water a day now, Glenn Avon would be uninhabitable. 

Two years ago, Congress created a federal superfund to clean up sites such as this.  Most of the money comes from a special tax on chemical and oil companies.  $1.6 billion should be raised before the tax expires in 1985.  But critics charged superfund hasn`t been used enough because of political delays or because EPA has been too easy on the industries which pollute it.  Political delays, example, the Springfellow Acid Pits, where not a penny of the federal super fund has been spent yet. 

Barbara Birch (ph) worries that her daughter will play and poisonous puddles.  Cathy Douglas (ph) is afraid to drink anything but bottled water.

As for the charges of going too easy on industry, example, Seymour Recycling, Seymour, Indiana, where 60,000 drums and a half million gallons of poisons were abandoned.  The philosophy of superfund was to spend now and sue later, sue the companies that polluted. 

But superfund wasn`t -- 


MADDOW:  Superfund wasn`t spent on Seymour.  Instead of suing, EPA negotiated an agreement with the polluters who promised to spend $8 million to clean it up.  Not enough to do a thorough job.  This was the kind of news coverage around superfund sites during the Reagan era of the EPA. 

Photos like this running night after night after night on national evening newscasts turned out to be enough to shame somebody into resigning.  The handling and the corruption around superfunds sites under Reagan ended up ending the tenure of his EPA administrator 22 months into the job. 

She was forced out by both Republicans and Democrats in Congress.  Reagan stood by her.  In fact a year later, he appointed her to chair a National Advisory Committee on Oceans and the Atmosphere.  You know, she had demonstrated her passion for the subject by trying to burn all our toxic waste in the nation`s oceans.  Either way, the backlash to that appointment was great.  She eventually withdrew herself from consideration for that role. 

So, Anne Burford had this fascinating history in the Reagan administration and an end in politics that probably wasn`t what she wanted.  But despite all of that, Anne Burford`s son did really well. 

Tonight, Anne Burford`s son, Neil Gorsuch, was nominated by President Trump to serve on the Supreme Court.  And that part of his family history is about to resurface, that whole part of the Reagan administration, which might be handy given how the EPA is being handled by our current president. 

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


Good evening, Lawrence. 

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