JOY ANN REID, MSNBC GUEST ANCHOR: -- for "A.M. Joy" and please follow me on Twitter @joyannreid. "The Rachel Maddow" show starts right now. Good evening, Rachel. Extraordinary scene on the Senate floor.
RACHEL MADDOW, MSNBC ANCHOR: Exactly, I'm glad you were able to discuss that breaking news on the air. If Senator Warren is being held accountable for impugning a senator, she's reading something out of the congressional record that was entered into the congressional record the last time this person was being considered for an important federal job other than being Alabama senator. This is just --
REID: It's amazing. And she's reading the words of Reverend Dr. Martin Luther King Jr.'s widow. It's amazing. Wow. Politics is nothing if not amazing. Show: THE RACHEL MADDOW SHOW Date: February 7, 2017 Guest: Jon Tester, Dahlia Lithwick MADDOW: And you think, like, all of these senators, they take these fights as they come, right? But if you're Mitch McConnell, is that the hill you want to die on? Really?
REID: Exactly, I don't get it but it happened and it happened here tonight and wow.
MADDOW: Stunning. We will have more on that ahead tonight. Joy, thank you very much.
REID: Have a great show. Thanks, Rachel.
MADDOW: And thanks to you at home for joining us at this hour. This is turning out to be a very interesting night in the news. Not only do we have the remarkable turn in the Senate, Senator Elizabeth Warren according to Mitch McConnell running afoul of Rule 19 saying she can't impugn a senator.
They're saying she impugned a senator when she read a letter that had been written to the Judiciary Committee when Jeff Sessions was nominated to be a federal judge in 1986, it was a letter from the widow of the Reverend Dr. Martin Luther King, Jr.
That is being considered impugning a senator and they've use it to shut up Elizabeth Warren on the floor of the Senate tonight, just incredible. And again, the optics of calling Coretta Scott King an epithet, saying her words are an epithet that can't be spoken in the United States Senate. We'll have more on that ahead.
Also, when's the last time the audio live stream of a three-judge panel reviewing a temporary restraining order was not only live streamed on the internet machine but also broadcast live on television on national news.
If you are a civics dork between Rule 19 and this, this is like a high holy day right now. If there is a kid in your life who dreams about ever becoming a lawmaker or a lawyer or judge, the fact they got to listen in tonight to this argument.
This incredibly tense dense, no nonsense cuts like a knife argument involving these three federal judges and the lawyers for the federal government and the lawyers for the state suing the federal government over the Muslim ban, don't call it a Muslim ban.
I mean -- you know, you can see arguments like that. You can hear arguments like that as a citizen if you know they're happening and you get up and take yourself to a federal courtroom and listen in but most of us don't do that.
Most of us don't watch these things happen ever, but tonight millions of Americans heard that court hearing live as it happened, which itself feels like another new benchmark in this era of civic engagement that we are having.
I know I have said it before, but it surprises me every day. There are two equal and opposite things going on in American politics right now. Two equally remarkable gobsmacking brand new things that nobody saw coming.
And one of them is obviously Donald Trump being elected president of the United States, but the other one is this huge new engagement in our political processes and civic processes and organizing and demonstrations and just paying attention.
This upsurge in civic involvement from regular people, so much so that we all spent more than an hour in prime time tonight riveted to what honestly was a hearing about a restraining order.
But it was amazing and it was important and tonight that three judge panel in the Ninth Circuit U.S. Court of Appeals, they are right now considering their ruling in this first big head-to-head confrontation between the new administration and the judicial branch of government.
That court let it be known ahead of time that they would likely not rule tonight, but they said their ruling will probably be sometime this week.
We're going to have expert advice in just a couple minutes to what was legally important about that hearing, whether it did go as badly for one side as it seemed like it was going for one side. But what do I know? I'm not a lawyer. So we have expert advice coming up from a veteran court watcher.
We have also got an interesting news tonight about a whole different kind of confrontation with the new administration and, again, this is -- it's something that is new. This one is absolutely unique.
Absolutely historically unprecedented because this other confrontation we're able to report on tonight exclusively. It's something only possible because this new president has done something no other president has done.
He has made a decision to keep his business interests alive, to continue to profit from them while he is also serving as president running the federal government. Because he made that remarkable decision we knew this day would come but it's happened.
A government agency has now had to make its own governmental decision about something that's going to directly affect the president's income. It's going to affect his profits.
For all the different things that can happen in American life and politics, nobody has ever been able to affect how much money the president has while he's president. That happened today and we did see this coming. We knew inevitably something like this would happen when we learned the president wasn't going to give up his business interests.
In the end, the first decision by a government entity about the president's money, about the president's profits and his businesses, it came from kind of a skeezy (ph) little case in which the president's company tried to make taxpayers in one state pay for environmental clean-up cost instead of him having to pay for them.
A government agency considering that claim from the president's company, tonight they have just decided against the president. Wow. Everybody freak out. So we have that story exclusively here tonight something we've reported on a few weeks ago and we saw coming down the pike, they have now made their decision fascinating.
That story is coming up as well. With we start tonight with pet stores. Pet stores in these seven states, Arizona, Connecticut, Louisiana, New Jersey, Maryland, Ohio, Virginia. Those seven states and also in New York City which incidentally has a bigger population than all but two of those states.
In all of those jurisdictions right now in those seven states and New York City, it is illegal right now to sell puppies to pet stores unless those puppies are from a reputable breeder.
Specifically breeders selling puppies to pet stores in those states, they have to be registered with the USDA, which means they get a USDA number and they have to have no violation in terms of their inspection reports.
So again, not every state does this. But seven states and New York City do, and slowly but surely experts in this field say that these laws that are in effect in these states and increasing around the country, it's sort of becoming a new trend in state law making, experts in this field say those laws are slowly but surely having an effect on what people call puppy mills.
They're making the puppy breeding business less profitable for people who can't pass those inspection reports. For people who abuse animals or keep animals in horrible conditions. USDA registration is not particularly hard to get.
USDA inspections are not particularly hard to pass but it's something and importantly it's enforceable. It's doable. It's a relatively simple standard and how you enforce it is obvious.
Pet stores or law enforcement in these states, if they want to check and see if a dog breeder is legally allowed to sell puppies to a pet store, they get on to the USDA web site, look them up by license number and read their inspection reports, see if they have clean inspection reports. That's it.
That's how you can enforce the law in these places that have that kind of law. All that data about who holds a license with the USDA and the inspection reports in terms of preventing animal abuse, all of that data for years now has been posted in easily searchable form on the USDA web site.
It's been there for years. It was there for years. It's no longer there, the Trump administration just took down all that data. They made no announcement about it. They gave no notice they were doing it. There was no press release.
No misspelled 7:00 a.m. tweet from the president. There was no discussion at the circus like press briefing. There was no explanation. They just did it.
By taking that data in one fell swoop, they made it impossible to enforce the law in these states, home to almost 58 million people where the law about not torturing puppies is based on people being able to look up this information that has always been publicly available to anyone.
And that's one specific thing for those states. They've now got a law enforcement problem. What do those states and New York City do now that they've got on their books a law they basically can't enforce anymore because they can't get access to the data because they can't enforce it.
Even outside those states it's another thing for you as a consumer, whether or not you live in one of those seven states. What if you personally want to avoid buying a dog from a puppy mill known to have a record of abusing animals, whether or not you're going to buy it at a pet store?
You're going to buy an animal from a breeder, wouldn't you want to know if they've been inspected and found to be abusing or torturing or mistreating their animals, wouldn't you want to know? Shouldn't you want to know? This is information in the public domain, right?
If federal inspectors have gone to a place and found at that site they're killing dogs, torturing cats or abusing horses or something, those are federal inspectors. They work for you. They work for us.
That data that they found while working on the taxpayer dime, that's supposed to be for our benefit. But now if you want to look up that information, they have gone out of their way to take it down.
That data is no longer there for you. If you want to access that information now, the USDA under the Trump administration, look what they're saying, they invite you to file a freedom of information act request to get that information.
And then you can sit back and wait a few months or probably years if we're being honest. What on earth is this about? Whether or not you care about animal welfare, what is this about? What's the urgency? No wonder they didn't make an announcement about this.
No wonder they didn't want to explain why they're doing this. I don't think anybody remembers the part of the presidential campaign where the president sat down in front of an editorial board and explained he wanted to be president in part so he could make sure that illegally operating puppy mills that abuse baby animals can finally get privacy and peace and quiet to get away with that now.
Do you remember that coming up? Honestly, where is this coming from? So the USDA dropped this data off their web site. Apparently, they dropped it on Friday. It took a while to figure out they had done it because, again, no announcement.
But now that people have realized what they've done, what's missing, the USDA is understandably getting some pushback. And this is where it gets to be a more broadly interesting story because when things go badly for the Trump administration, when nay do something that doesn't land well, when they experience pressure about something they've done we're starting to learn how the trump administration responds in those circumstances.
We're starting to see patterns. One of the things they do when something goes wrong, when they do something that doesn't have an explanation, when they get called out doing something they really don't want to answer for, one of the things they have started doing in that circumstance is that they say Obama did it.
It wasn't us, don't blame us, this is an Obama thing. They tried to do that for a while with the refugee ban. Remember? They tried to say Obama had banned Iraqi refugees, and this was just a slightly different version of that policy.
That argument did not work because Barack Obama was president really recently, and we were all here. That kind of a claim is look-upable. People are like Barack Obama banned Iraqi refugees? No answers. No response. No, not true. You can check that stuff.
You can talk to the people involved in the policy and read contemporaneous reporting. You can see that it's bull pucky. They tried to do it with the refugee ban. They tried to do it with the disastrous fatal raid in Yemen, which killed a U.S. Navy SEAL, injured three others and killed a bunch of Yemeni civilians, including children.
They tried to say that that disastrous military operation was only approved because Obama approved it. They said Obama's National Security Council, the deputies at the National Security Council, they approved that mission at a meeting on January 6th.
Again, a claim like that is not going to work because the folks from the deputies meeting at the National Security Council under Barack Obama, those folks are still around. That isn't ancient history. You don't have to dig those people out of deep retirement.
Those people can answer for themselves. It's a matter of record as to whether or not they approved that mission. They did not approve that mission. That's on you guys. Now they're trying this Obama did it defense again on the puppy torture thing.
This is what they put on the USDA web site where they used to have all the information about inspections of places where they breed animals. It says "In 2016, well before the change in the administration, the animal care section of the USDA decided to make adjustments to the posting of regulatory records."
See, Obama did it. This is a decision made by the Obama administration don't blame us, blame the USDA under Obama. The problem is that the people who ran the USDA under Obama are real people. They're not that old yet. They're around. They can speak for themselves. They can tell us whether or not they did that.
So here's the former spokesman for the USDA under the Obama administration saying, uh-uh, to that attempt to weasel out of the now-growing backlash to what they just did with the animal abuse reports.
Quote, "Decision by USDA to remove animal abuse reports was not required. Totally subjective. Same option was give on the past administration, we refused." Then he adds, "#transparency."
So the previous administration, the Obama administration had the option to take down all of the inspection reports about people abusing animals around the country so you could check to make sure you're not accidentally buying an animal from one of them.
And so these seven states could use that information to make sure their pet stores state-wide didn't buy any animals from those people. The Obama administration said, yes, we had the option to take down the abuse reports but we did not. We chose not to. Don't blame us.
Now the Trump administration has taken those reports down and people are starting to notice and they're trying to blame it on the Obama administration. It's ridiculous. And so we'll see what happens here.
This does kind of fit the pattern of actions like this from the Trump administration that ultimately get reversed. It's amazing. They've only been there for two and a half weeks, but we've already got patterns and we've already seen a bunch of these things where they have made a sweeping radical, unannounced decision to disappear data or gag public servants or do something else that shocks people.
And then when the action gets noticed and there's a reaction, their M.O. is to reverse themselves and say they never really meant to do that shocking things in the first place. We've seen it happen a bunch of times already.
We saw it happen with the Health and Human Services Agency. They initially told staffers and scientists at HHS that they were forbidden from speaking about their work with anyone including members of Congress.
They weren't even allowed to respond to requests for information from members of Congress or congressional committees. They tried that with HHS. They got a big pushback and they reversed that order.
Happened with the EPA when they circulated plans to remove the climate data from the EPA web site. An EPA employee publicized that instruction, they got obviously huge pushback then they reversed that decision. They climbed down, left the data up there.
Happened also at the Department of Energy during the transition. They demanded to have the individual names of all Energy Department employees who worked on anything related to climate change and because it was the transition that agency was still run by Obama appointees and they publicized that demand for names and pushed back directly on it and said no and the Trump folks caved.
They rescinded the request. We have even seen it happen at the USDA. The Agricultural Research Service is part of the USDA. They have about 2,000 scientists, public employees, scientists that work for USDA.
The Trump folks had initially told those 2,000 scientists were forbidden from discussing their scientific findings in any public-facing venue. Like this casual order from the Trump folks to gag 2,000 scientists and prevent them from talking about their work.
That order was leaked, there was pushback and the Trump folks rescinded it. We are only a couple of weeks in, but we are starting to see some patterns about who they try to blame and how they respond when they get a shove back.
And the USDA taking down public information about people who abuse puppies and kittens and horses? I mean, I don't know but this seems like it's one of those things that will get reversed.
Again, they did it with no announcement. They have come up with no argument or explanation for it other than "Obama did it." People are just now figuring out it happened, Obama did not do it.
I think it's safe to assume you'll hear a lot of barking from American dog lovers about this one. I don't see how they can stick with this at all. It may be the case what they did violates a court order between the USDA and Humane Society so the courts may force this data to go back up even if public pressure does not.
But I would bet on public pressure on this one. Again, don't watch what they say, watch what they do. They're not announcing they're taking down the data. They just take it down and hoping they can get away with it. When they don't get away with it and they get shoved back, more often than not, they cave.
With this one, how can they explain it? So there is a lot going on in the courts. We are going to have more tonight on the legal fight over the refugee ban and Muslim ban. That's coming up in just a moment.
There is some unprecedented stuff going on in government agencies large and small who are making these novel never before seen decisions about what would otherwise be normal business matters, normal regulatory issues except now sometimes when those come up they're about the business interests and the financial bottom line of the sitting president of the United States.
So that's happening already. There's also a lot going on in Congress, as we spoke with Joy Reid, there's been some drama tonight in terms of Republicans in the Senate silencing Elizabeth Warren as she quoted from Coretta Scott King, Coretta Scott King's criticism of Jeff Sessions from 1986.
They said she was impugning another senator and have ruled against her and ordered her to be quiet. She may have to be quiet in the Senate, but she's going to join us live on this show in just a moment. There's a lot going on tonight. Frankly too much to get to. I'll stop talking now and we'll be right back with Elizabeth Warren. Stay with us.
MADDOW: OK, so we have been keeping an eye on a developing situation tonight in the U.S. Senate. Democrats tonight have been trying to take a stand trying to hold the Senate floor in protest of Jeff Sessions' nomination as attorney general.
In the last few hours, Massachusetts Senator Elizabeth Warren took the stand to read a very interesting piece of Senate history. One of the reasons it's interesting is that until recently it didn't exist in the historical record.
In 1986, 30 years ago, Coretta Scott King, the widow of Martin Luther King Jr., she wrote a letter to the U.S. Senate vehemently opposing the judicial nomination of a U.S. attorney for Alabama on the grounds of his hostility to civil rights and his hostility to voting rights in particular.
That letter opposing his nomination to be a federal judge was almost lost to history because the Senate president at the time, long time segregationist, Strom Thurmond, he didn't submit Coretta Scott King's letter to the congressional record even though he was supposed to.
Well, thanks to some intrepid reporting last month from "Buzzfeed" and the "Washington Post," that lost letter was found and we now know what Coretta Scott King said in her plea to the Senate in 1986 to keep this U.S. attorney off the federal bench.
In 1986, the U.S. Senate actually went along with Coretta Scott King's wishes. They rejected that nominee for a federal judgeship. His name was Jeff Sessions, he went on to be a U.S. senator from Alabama. He's now nominated to be attorney general of the United States.
And tonight, Elizabeth Warren took to the Senate floor to express her opposition to the nomination of Jeff Sessions to be AG and she decided to wield I think what most people would agree is the most devastating rhetorical weapon she had at her disposal.
She had that same letter from the widow of Dr. Martin Luther King Jr., making the case against Jeff Sessions 30 years ago, which Democrats say is the same case that could be made against him now.
As a result of that, as a result of Elizabeth Warren quoting Coretta Scott King, Senate Majority Leader Mitch McConnell moved to cut her off, to end her speech due to a breach of Senate rules.
(BEGIN VIDEO CLIP)
SENATOR MITCH MCCONNELL (R), MAJORITY LEADER: Mr. President.
UNIDENTIFIED MALE: Majority leader?
MCCONNELL: The senator has impugned the motives and conduct of our colleague from Alabama as warned by the chair. I call the senator to order under the provisions of Rule 19.
SENATOR ELIZABETH WARREN (D), MASSACHUSETTS: Mr. President?
UNIDENTIFIED MALE: Senator from Massachusetts.
WARREN: Mr. President, I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate. I ask leave of the Senate to continue my remarks.
UNIDENTIFIED MALE: Is there objection?
MCCONNELL: I object.
WARREN: I appeal the ruling --
UNIDENTIFIED MALE: Objection is heard. The senator will take her seat.
(END VIDEO CLIP)
MADDOW: We are expecting to be joined live by Senator Elizabeth Warren any moment now. That has just happened in the Senate. She's just been called back to the floor, but we are going to get her. So sit there for the commercial but then be there when the commercial is over because we'll be right back.
UNIDENTIFIED MALE: I rise in opposition to the nomination of Senator Jeff Sessions to be the next attorney general of the United States.
UNIDENTIFIED FEMALE: Senator Sessions' record in the Senate provides little evidence that his views have evolved since the last time the Senate evaluated his fitness to serve in high federal office.
UNIDENTIFIED MALE: Over the course of his career, Senator Sessions has opposed key legislation that protects and further enhances women's rights. As a Senator that trend was worrying. As attorney general of the United States it must be disqualifying.
WARREN: Senator Sessions obviously isn't going to stand up to the president's campaign of bigotry. How could he? In the real world, Senator Sessions is one of the principal architects of that campaign.
(END VIDEO CLIP)
MADDOW: At one point tonight, Republican senators ruled Elizabeth Warren out of order on the Senate floor when she read a scathing assessment of Jeff Sessions by Coretta Scott King, the widow of Martin Luther King Jr., a letter that Coretta Scott King wrote about his judicial nomination in 1986.
Republicans spent a good bit of the last hour voting on that matter whether Elizabeth Warren could be allowed to read that letter or whether she would be essentially shut down and silenced by the Senate.
Again, we expect Senator Warren to join us shortly. Regardless of whether or not she is allowed to speak in the Senate again tonight, Democrats say they do plan to hold the floor all night long again tonight.
Last night Democrats held the floor all night long to try to stop Betsy DeVos from becoming the nation's next education secretary. They claim as close as you possibly can to stopping her nomination.
The vice president had to come in and cast a tie breaking vote when it was deadlocked at 50-50, but ultimately they didn't get there and DeVos was sworn in tonight.
Tonight though they are not put off. Democrats are running another all- nighter, this time to try to stop Jeff Sessions for attorney general. The vote on his nomination is expected tomorrow.
Democrats, of course, know that their odds of stopping these nominations are slim. But they really are doing everything they can to slow these nominations down at least.
Joining us now is Senator John Tester, Democrat of Montana, who opposed Betsy DeVos's nomination earlier today. Senator Tester, I know it's very busy tonight, thank you for joining us.
SENATOR JON TESTER (D), MONTANA: It's great to be here, Rachel. Thank you.
MADDOW: Can you give me a little bit of insight in terms of what happened tonight? What you Democrats are trying to do and what's happened with this kerfuffle over Senator Elizabeth Warren and what Senator McConnell has done to interrupt her speech?
TESTER: Well, a lot of shenanigans by the majority. I think it's just to take the focus off of Jeff Sessions. There's plenty of reasons to vote Senator Sessions as attorney general and I think this is politics as usual in Washington, D.C., and you know, trying to run up the roadblocks.
When the fact is that on these cabinet appointees, we need to have a full debate. There's no if ands or butts about that, Rachel, and there's plenty of things like I said. Elizabeth brought up some, I heard Dick Blumenthal and others brought up some issues on Jeff Sessions and we ought to have the debate.
And I think that's what Democrats are doing, fully vet these folks before the vote and hopefully we'll get some help from the other side on some of these candidates that don't match up.
MADDOW: Senator, before tonight -- and forgive me if this is an oversight on my part, but I was not clear if you have made an overt statement, if you'd made a clear statement as to how you intend to vote personally on Senator Sessions' nomination. Have you decided whether you'll vote yes or no on him?
TESTER: I have. Jeff Sessions has been a strong supporter of the Patriot Act. When we tried to fix the Patriot Act to protect civil liberties and protect privacy, he voted against that. He also voted against the Violence Against Women Act. He does not appear to care about women who have had violence committed against them and so I'm going to be voting no.
Like I said, there's plenty of reasons to vote no on Jeff Sessions. You know, this is an attorney general, which is an incredibly important position in this country, and we've got to have somebody that not only will do a good job in that position as the chief attorney, but also hold the president accountable when he does things that may be a little bit off the rails.
MADDOW: Senator, you have a reputation as a very practical man, a practical politician, somebody not particularly ideologically motivated, and you're more of a get things done kind of guy. I think, that's why you have admirers on all sides of the ideological spectrum.
Given your political instincts and where you come from, what's your take on this overall strategy by the Democratic caucus to just slow things down? Even when you don't have the numbers, even when all the way down to the wire with Betsy DeVos, you're praying for a third Republican to side with you even after you got those two.
With the Sessions nomination we haven't heard any Republican say they won't vote for him. What's your assessment of how valuable it is to slow things down even if you can't stop them?
TESTER: Well, Rachel, first of all, I look at it from a different perspective. We're bringing out all the information and talking about all the challenges these different cabinet appointees, in this case Jeff Sessions has. I think that's healthy.
I think there's a world of information out there on Jeff Sessions and his years in public service that we need to scrutinize and evaluate and see if he's fit for the job. If that takes 30 hours to do, let's take the full 30 hours and do it. I think that's a good strategy.
Let not only the people in the Senate hear what's going on with these different nominees, but let the American people hear, too. I will tell you, in Betsy DeVos' case, we received 35,000 e-mails and phone calls in January and that's seven times as many as we did in January of 2016.
And it not only is DeVos, but a lot of these other cabinet secretaries, Jeff Sessions being another one, that quite frankly don't match up with the values of many of the middle-class families of this country.
MADDOW: Senator John Tester of Montana, thank you for your time tonight. I know the second night of a two night all-nighter. It's not fun to be on TV. So thanks for being here, sir. I appreciate it.
TESTER: Thanks, Rachel.
MADDOW: All right, we are expecting, again, to be joined by Senator Elizabeth Warren live shortly after her drama being silenced on the Senate floor tonight by the Republican majority. That's ahead. Stay with us.
MADDOW: Tonight, more than 135,000 people tuned in simultaneously to the Ninth U.S. Circuit Court of Appeals YouTube page to hear the oral arguments over President Trump's Muslim ban and refugee ban. A 135,000 people listening to an appellate court live stream that amazingly didn't crash.
That was only people listening on the court's YouTube page. That doesn't count the people who, for example, heard the arguments broadcast live on networks like this one.
This argument tonight which is amazing in part because of people's civic engagement with it, it was probably the most important judicial test yet for the new administration and honestly the arguments were complex.
They involved issues of standing and prior case law and for your average non-lawyer it was sometimes a little hard to follow, but it wasn't always hard to follow. Check this out.
(BEGIN AUDIO CLIP)
AUGUST FLENTJE, TRIAL ATTORNEY, DEPARTMENT OF JUSTICE: The executive order relied on the Congressional and administrative determination of years ago of 2015 and 2016 so it's not an order that discriminates in a -- on the basis of religion and there would not be a valid equal protection.
UNIDENTIFIED MALE: Could the president simply say in the order we're not going to let any Muslims in?
FLENTJE: That's not what the order does here.
UNIDENTIFIED MALE: I know. I know that.
FLENTJE: The order relies -- sorry, your honor.
UNIDENTIFIED MALE: Could he do that? Would anybody be able to challenge that?
FLENTJE: That's not what the order does here.
(END AUDIO CLIP)
MADDOW: Lawyers have jobs, maybe one of them isn't to answer questions? Even I could follow that part. Even I know what just happened there. Joining us now is Dahlia Lithwick, senior editor and legal correspondent for "Slate" magazine and she is our interpreter of moments like this. Dahlia, it's great to have you back. Thanks for being here.
DAHLIA LITHWICK, "SLATE" SENIOR EDITOR AND LEGAL CORRESPONDENT: Hi there, Rachel.
MADDOW: Does it warm the cockles of your heart that 135,000 people were simultaneously streaming from the court's YouTube page while they were having that argument tonight?
LITHWICK: Little bit. Little bit of civil procedure. Whoo.
MADDOW: It was really interesting to listen to. It was also a little bit impenetrable. As somebody who observes these things closely, what's your overall impression about how this went for the two sides?
LITHWICK: You've heard me say so many times, Rachel, it's so dangerous to predict based on an oral argument. I think it's fair to say one of the three judges was extremely hard on the Justice Department's side. One of the three judges was quite hard on Washington State and Minnesota.
Judge Canby probably more inscrutable. I didn't count two votes for doing away with the stay all together. I think they were trying to figure out is there some middle way we could grant standing, narrow the order so they're clearly struggling.
I don't think this is a thing they cannot out this evening. I think there's enough differential among the three of them that they'll have to think this through.
MADDOW: You know, we've been watching this in part because of just an interest, almost an abstract interest in terms of how much the judiciary is going to be a check on things that the Trump administration wants to do and for seeing this is sort of the first big test.
I imagine there will be lots of hearings like this in the future. I don't imagine they'll get this much attention, although, who knows. But the other part is obviously practical. When this ban went into effect on Friday, it was human chaos on a very large order.
We're partly wondering if this ban goes back into effect. If the restraining -- I don't get -- if the ban goes back into effect, would we have as much chaos as we had the first time around?
Were you able to get practical clues from either the judges and lawyers in terms of whether or not they would be better prepared to reinstate this if it does go that way?
LITHWICK: There was a colloquy with the lawyer from the Washington State who said we're going to be back in chaos land and we're going to be back in chaos land kind of taking the government's word at their faith that this time it won't be crazy because certain classes of visitors and visa holders that we were confused about we're no longer confused about.
Do we want to take their word? I think the feeling was generally that if you have to weigh whether the government is going to be more harmed or Washington State is going to be more harmed, again, it felt as though there was less harm to the government for keeping this on pause for a little while.
MADDOW: Dahlia Lithwick, senior editor and legal correspondent for "Slate" magazine, really appreciate your time talking about this tonight. When we do get the ruling from them, can I call you to have you explain it to me?
LITHWICK: Yes, you can.
MADDOW: Very good. All right, thanks, Dahlia.
All right, still ahead tonight, we are still expecting to hear from Senator Elizabeth Warren, who has just officially silenced on the Senate floor. We've also got that sort of remarkable news out of South Carolina tonight that we have exclusively this evening. Stay with us, lots still to come.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Mr. President, the suggestion that the reciting the words of the great Coretta Scott King would invoke Rule 19 and force Senator Warren to sit down and be silent is outrageous. I move that the senator from Massachusetts be permitted to proceed in order.
(END VIDEO CLIP)
MADDOW: New California Senator Kamala Harris moments ago urging the Senate to let Senator Elizabeth Warren resume her speech against the nomination of Jeff Sessions to be attorney general. Senator Warren tonight was called to order and essentially sat down by the Senate Majority Leader Mitch McConnell for the crime of impugning Jeff Sessions.
They accused her of that one. She read a letter from Coretta Scott King about Jeff Sessions' nomination to a federal judge in 1986. Joining us now is Senator Elizabeth Warren, Democrat of Massachusetts, who has just been through this strange ordeal this evening. Senator Warren, thank you for joining us on short notice.
WARREN (via telephone): Thank you.
MADDOW: What happened tonight?
WARREN: Well, what happened is that I was speaking about Jeff Sessions and what I believe to be is his complete lack of qualification to be attorney general of the United States and I believe he should be disqualified to be attorney general.
And I had gone through the facts. I've done part of my speech and then I went back -- and he had been considered for a nomination to the federal bench and I read Ted Kennedy's statement into the record.
And when I finished, I then read Coretta Scott King's letter that she sent to the committee. The committee that ultimately decided no on Jeff Sessions, including Democrats and Republicans who voted against him.
And now reading that letter out loud, according to Mitch McConnell, impugned Senator Sessions and, therefore, I got gavelled and was forced to sit down and I am not allowed to speak on the floor of the Senate.
MADDOW: I'm unfamiliar with this part of Senate rules. Obviously everybody in that room know what is a Rule 19 violation is.
MADDOW: We saw them tell you to sit down. You said you're not allowed to speak. How long are you not allowed to speak for?
WARREN: I'm not allowed to speak so long as the topic is Senator Jeff Sessions. I've been red carded on Senator Sessions. I'm out of the game on the Senate floor. I don't get to speak at all.
MADDOW: The fact that this has happened over the word of Coretta Scott King puts almost a surreal cast on this. It seems hard to believe that the Republicans would want to make a national issue, create a political national crisis around this nomination, specifically around the widow of Dr. Martin Luther King.
Did you know that you would be treading into this territory where they might be gavelling you and sitting you down when you chose to read this letter? Did you think it would be this controversial?
WARREN: No, I did not, but I will say this. I hope that everyone reads Coretta Scott King's letter because her letter lays out in detail what it looked like back in the 1980s when Jeff Sessions came up to be a federal judge.
And she talks about what it meant when he was a U.S. attorney and the actions he took. She summarized by saying that she did not believe that Jeff Sessions ought to be confirmed to a federal judicial position and why he was disqualified.
It is eloquent and it reminds us of a time in history that we would like to think is far behind us but reminds us that it is not.
MADDOW: Senator Elizabeth Warren of Massachusetts, I know you need to return to the floor. Thank you for helping us understand it.
WARREN: Thank you. Bye-bye.
MADDOW: Just recapping what happened here, in case you didn't grasp the overall arc here, this really is a remarkable thing. Senator Warren has not been a Senator for all that long, but she's an astute -- she's one of the people who knows the rules, she's not a rookie.
Had she gone in there picking a fight to get purposely thrown out because that was going to be the appropriate political drama for this moment, we would know it. It's not that.
This is the Mitch McConnell, the leader of the Republicans in the Senate, deciding that Coretta Scott King's words are so offensive on their face, that her eloquent argument is so offensive on its face it's unfit to be heard on the floor of the United States Senate.
The widow of Martin Luther King Jr., and therefore, Elizabeth Warren is red carded, is off the floor for the entire discussion of the Sessions nomination.
And they should go ahead toward his nomination vote, despite the civil rights and racism concerns around him because Coretta Scott King's words have been -- have been shut up, have been stopped from being read on the floor.
I mean, if you think they're worried about symbolism of these sort of things, if you think they're worried about, I don't know, offending African-Americans in this country, think again. Watch what they're doing. Senator Elizabeth Warren joining us live there from the Senate floor. We'll be right back.
MADDOW: I mentioned at the top of the show that we have an exclusive story about a ruling in South Carolina about the president and his business interests and a state government agency being called on to make a ruling about the president's pocketbook interests and profits.
That's an unprecedented thing this U.S. history because presidents have never had those sorts of conflicts of interest before. We do have that story. I am not going to do it tonight in part because we've had this breaking news. We'll break that story tomorrow.
By then you may have heard about it in other places, but I'm giving that up because I do think we're having a moment right now that's worth noting about the Jeff Sessions nomination being voted on tomorrow and what Senator Elizabeth Warren was just silenced for on the floor of the Senate.
She suggested people should read Coretta Scott King's letter about Jeff Sessions' nomination to be a federal judge in 1986. I'm not going to read you the whole, but I will read some of it.
This is from Coretta Scott King, March 13th, 1986, "Mr. Chairman and members of the committee, thank you for allowing me this opportunity to express my strong opposition to the nomination of Jefferson Sessions for a federal district judgeship for the southern district of Alabama.
Civil rights leaders including my husband and Albert Turner have fought long and hard to achieve free and unfettered access to the ballot box. Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge.
This simply cannot be allowed to happen. Jeff Sessions' conduct as a U.S. attorney from his politically motivated voting fraud prosecutions to his indifference toward criminal violations of civil rights laws indicates that he lacks the temperament, fairness and judgment to be a federal judge.
Blacks still fall short of having equal participation in the electoral process, particularly in the south. Efforts continue to be made to deny blacks access to the polls, even where blacks constitute the majority of the voters.
It's been a long uphill struggle to keep alive the vital legislation that protects the most fundamental right to vote. A person who has exhibited so much hostility to the enforcement of those laws and thus to the exercise of those rights by black people should not be elevated to the federal bench.
The irony of Jeff Sessions' nomination is that if confirmed, he will be given life tenure for doing what the federal prosecution what the local sheriffs accomplished 20 years ago with clubs and cattle prods.
I'll skip to the end of her letter to the Senate in 1986, quote, "I do not believe Jefferson Sessions possesses the requisite judgment, competence and sensitivity to the rights guaranteed by the federal civil rights laws to qualify for appointment to the federal district court.
Based on his record, I believe his confirmation would have a devastating effect on not only the judicial system in Alabama, but also on the progress we have made everywhere toward fulfilling my husband's dream that he envisioned over 20 years ago --
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