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Sotomayor gives dissent in Travel Ban case. TRANSCRIPT: 06/27/2018. The Rachel Maddow Show

Guests: Chris Murphy, Dahlia Lithwick, Cecile Richards

Show: THE RACHEL MADDOW SHOW Date: June 27, 2018 Guest: Chris Murphy, Dahlia Lithwick, Cecile Richards

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. I have to tell you, your interview with Alexandria Ocasio-Cortez was so impressive, I could hardly believe it. I mean, we've been reading a lot about her, and obviously, everybody knows what she pulled off last night.

But seeing you and her in that ping-pong interview back and forth at that level of intellectual engagement was so impressive, I could hardly stand it.

CHRIS HAYES, MSNBC HOST, "ALL IN": She has very obvious, very obvious political talent which was very obvious very early on.

MADDOW: I mean, she did something super impressive. But wow, just the chops in that conversation.

HAYES: Yes, agreed.

MADDOW: Really fascinating to see. Well done, my friend.

HAYES: Thank you.

MADDOW: Thanks.

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

All right. He was the tallest ever member of the United States Senate, 6'9". His nickname was Big Luther, which is not a particularly original nickname when you are 6'9" and your name is Luther. What else are they going to call you, tiny?

He played varsity basketball at Tulane back in his college days, back the day of short basketball shorts. He eventually ended up as attorney general of the great state of Alabama when the Republican governor of Alabama found himself involved in a particularly visceral sex scandal.

This is the governor. There were tapes. There were actual publicly released audio recordings of the governor canoodling with his mistress and talking to her quite bluntly about all the different ways he would like to canoodle with her.

Alongside the almost unbelievable sex scandal part of it, there were also some serious allegations of misuse of public funds that went along with that sex scandal. But that scandal involving the Alabama governor, it ultimately led to on impeachment investigation. He was a Republican governor. It was a Republican-run legislation. But this was a serious thing and they started an impeachment investigation against him.

Until Big Luther, state attorney general, intervened to stop it. He came to the legislature, and he told them they should hold off on that impeachment investigation because this was a law enforcement matter first and foremost, and as the senior law enforcement official in Alabama, he and the attorney general's office would be handling that. So they shouldn't let their little legislative inquiry get in the way of the real investigation.

And the speaker of the house in Alabama and the chair of the judiciary committee in Alabama, they said OK. They stood down. They said, we'll wait to hear from the A.G.'s office and how they're going to handle it. We will put impeachment proceedings against the governor on hold.

Now, meanwhile, the United States of America had a presidential election with the surprising result that Donald Trump was elected president. One knock-on effect of Trump being elected president was perhaps the even more shocking result that Jefferson Beauregard Session III once rejected from consideration to be a federal judge because he was seen as too racially biased for Alabama, and that was by a Republican-controlled congressional committee, Senator Jeff Sessions, of all people, upon the election of Donald Trump would ascend to become attorney general of the United States.

Perhaps even more shocking than Donald Trump becoming president, right, to see Eric Holder and Loretta Lynch succeed by Jeff Sessions in the attorney general's office that hit much of America like a 2x4 upside the head.

But in Alabama, Jeff Session becoming attorney general of the United States also had the very practical consequence of opening up Jeff Sessions' U.S. Senate seat, whereupon the governor of Alabama, in the midst of his horrific sex scandal and this bipartisan aggressive impeachment proceedings against him in the legislature that had only been halted by the intervention of his attorney general, that scandal-ridden barely holding on Alabama governor looked around in that moment, frankly, he looked up in that moment and decided that of all the good people in the great state of Alabama, the one who should get named to that now newly vacant U.S. Senate seat was big Luther, the attorney general who had taken over the investigation into the governor's sex scandal and thereby stopped him from being impeached.

There didn't have to be an election. The governor just got to pick whoever he wanted to fill Jeff Sessions' Senate seat. He picked Big Luther. The day Big Luther was sworn in, Luther Strange announced actually his office had never had the governor under investigation in the sex scandal at all. He didn't know why anybody had had that impression.

And that's how Big Luther Strange got to the United States Senate. That's how they do things in Alabama Republican politics.

But when something like that is the origin story for how somebody becomes a U.S. senator, it is almost inevitable that that story will end as badly as it began, right? And indeed, Luther Strange still holds the record for being the tallest ever person in the U.S. Senate, but he's already gone from the Senate.

And the governor's no longer governor either. This was the governor's smiling creepy mug shot. These are the charges that were brought against him. As Luther Strange's door prize for his cameo role in the sex scandal that did bring down the Alabama governor, Mr. Strange got to hold on to that U.S. Senate seat for a few months even after the Alabama governor who named into that seat was forced out of office.

But ultimately, the people got a say themselves. Alabama Republicans held a primary last summer and then a runoff last fall in both of those elections, this incumbent senator, Luther Strange, who was appointed by the disgraced governor, he got beat both times by a disgraced state supreme court justice who had twice been thrown off the court for violations of judicial ethics.

Big Luther Strange was initially the senator who filled Jeff Sessions' Senate seat from Alabama, but he didn't even make it a year. He was out by December after just ten scandalous, strange months in office. That Republican candidate who beat him in the primary back home, he ended up facing multiple substantive allegations of child molestation in addition to his other preexisting ethics troubles.

When it came time in December for not just Republicans, but the whole state of Alabama to vote for a new full-term U.S. senator, ultimately in that special election in December, Alabama decide they'd were going to pick a Democrat. Thanks to Big Luther Strange and his weird fake pledge that he was investigating the sex scandal governor, thanks to the sex scandal governor himself, thanks to Roy freaking Moore and all those women who came for toward say hey, I'm an Alabama Republican too, but you need to know about this guy and his thing with little teen girls, thanks to all that sordid almost not safe for work toxic slurry of these Alabama Republican men, and thanks to Democrats deciding last year to say yeah, we know it's Alabama, but in circumstances like this, we think we might be able to compete there too.

Thanks to all of those unlikely little stars aligning, Jeff Sessions' U.S. Alabama Senate seat is now held by Democrat whose name is Doug Jones. And with Senator Doug Jones of Alabama in that seat, the balance of power in the United States Senate is now that Republicans have 51 seats, but Democrats have 49.

Now with a Republican president in office, even with this particular Republican president in office, a reasonable observer might reasonably have predicted that Justice Anthony Kennedy would choose this time to retire. We're going talk a little bit later this hour about some of the reasons people expected he might not retire, some of the stuff about President Trump you might think would have given Justice Kennedy pause when he was thinking about who he would trust to choose his successor.

But Justice Kennedy is a Republican. Donald Trump is a Republican. That is apparently all the math you need to understand and predict Republican behavior in this era of American politics. So Anthony Kennedy retiring has been at least plausibly predictable ever since the Republicans won the White House in November 2016. Under no circumstances, though, could anybody have plausibly predicted on Election Day in November 2016 that Jeff Sessions' Alabama Senate seat would be held by a freaking Democrat, right?

I mean, presumably, stranger things have happened, but it took a lot of almost unbelievably strange things to all happen all at once in order to get a Democratic U.S. senator from Alabama in 2017 and now 2018. And because of that -- I mean, I know there is a lot of gnashing of teeth among Democrats and centrists today saying oh, god, all is lost today with Anthony Kennedy retiring from the Supreme Court. But if you don't look at this in the abstract, if you look at this in the specific, we're actually on day one of what's going to turn out to be a super fascinating fight.

And I mean fascinating in the sense that this is about to be suspenseful. This is about to be really hard fought. This is about to be exciting. And the way things are exciting when they are both important and you legitimately don't know how they're going to turn out. And this one has the additional excitement behind it because this might turn thought the way that may turn out how hard you work on it.

And there aren't that many American political problems that happen in the short-term that are very specific, that have a very clear outcome and you might be involved, but this is one of them.

The reason Anthony Kennedy's retirement felt like such an earthquake today, the reason a lot of observers are saying this is the biggest political earthquake since the election of Trump and the subsequent revelation that a foreign adversary had a role in helping elect Trump, the reason Kennedy leaving the court today is being seen as a once in a lifetime show-stopping political moment, particularly for Democrats is not necessarily because of anything about Anthony Kennedy. It's because of this.

Conservative Justice Antonin Scalia died February 2017. President Obama picked a centrist nominee to succeed him, Merrick Garland, who's described by everybody as a centrist and a moderate. He was even described by Senator Orrin Hatch, Republican of Utah, as the kind of person who would be seen as a consensus nominee, a 100-vote nominee, somebody who even Republicans could not have any conceivable objection to.

But even though the nominee was Merrick Garland, Republicans nevertheless decided to do something completely without precedent. They decided that they would hold Scalia's seat open for well over a year. They refused to meet with the nominee.

They refused to hold a hearing, refused to hold a vote, they refused to even consider or discuss any nomination, even Merrick Garland's nomination, specifically because they said President Obama should not be allowed to name a justice to the court. No nominee, no matter who it was. Not while President Obama was still in office. Have to wait until after the election. New rule.

Now had that not happened, had Merrick Garland been appointed to fill that open seat on the court after Scalia died in February of 2016, yes, today would still be an important day on the court with Anthony Kennedy retiring, but it would not be anywhere near the radical consequential crossroads that it is for the court and the country today. The weight of this moment, the consequence of this moment is all because of what Republicans did when they blocked president Obama from getting to name the last justice. What Republicans did with Merrick Garland is something that has never been done before, and they did it without any hesitance, without any shame.

They just declared new rule. This president isn't going to get to name a new justice. Nope. No nominees considered until after the election. New rule.

That is how we got to this moment. That's why today is so important. And now as of today, Democrats have a decision to make. And Republicans do too.

Everybody in this country who has a senator has a decision to make on this too, and it's very simple, actually. Democrats, presumably, are not in this circumstance the doormats that Republicans want them to be, right? Democrats know what happened to them. With Merrick Garland's seat, right? Democrats know what happened to President Obama.

Having lost a democratically appointed Supreme Court nominee simply on the basis of Republicans punching them in the teeth, holding them down and taking it by force, presumably Democrats have realized they should not ratify that by going back to regular order now and letting Republicans have this next one, too. Thank you, sir. May I have another?

I mean, if the reported justification for blocking President Obama from naming a nominee to the court was that it was February of an election year in 2016 when the last vacancy came up, well, hello, it's June of an election year this year when this vacancy has come up. Why would now you've not make Republicans hew to the same standard?

I mean, Democrats are either doormats, or they will insist at least on consistency. They will insist that the Kennedy vacancy must be treated the same as the Scalia vacancy, right?

And I know it sounds blunt when I put that it way, but the Democrats are already there.


SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year. Senator McConnell will tell anyone who listened that the Senate had the right to advise and consent and that was every bit as important as the president's right to nominate. Millions of people are just months away from determining the senators who should vote to confirm or reject the president's nominee, and their voices deserve to be heard now as leader McConnell thought they should deserve to be heard then. .


MADDOW: Senator Schumer, top Democrat in the Senate that was him on the floor of the Senate today responding to the Anthony Kennedy resignation. No vote on a successor to Kennedy until after the election. Same rules should apply now as applied in the Scalia seat came up in 2016, and Republicans wouldn't hold hearing then until after the election that year. Same rules should apply.

Senator Dianne Feinstein is the top Democrat on the Judiciary Committee which is a committee that hears Supreme Court nominations. Today, she said the same thing. She said, quote, we're four months away from an election to determine the party that will control the Senate. There should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in.

Leader McConnell set that standard in 2016 when he denied Judge Merrick Garland a hearing for nearly a year. The Senate should follow the McConnell standard.

Senator Elizabeth Warren of Massachusetts, considered by many to be a likely Democratic presidential contender in 2020. She says, quote, Mitch McConnell should follow the Mitch McConnell rule. Let the American people have a say.

Dick Durbin, number two Democrat in the Senate, makes the same case today, says, quote, Senator McConnell set the new standard by giving the American people their say in the upcoming election before court vacancies are filled. With so much at stake for the people of our country, the U.S. Senate must be consistent and consider the president's nominee once the new Congress is seated in January.

Senator Kamala Harris, also on the Judiciary Committee, also seen as a rising star in the Democratic Party with a growing national profile. She makes the same case. Quote, the American people who are set to vote in less than four months deserve to have their voice heard. We should not vote on confirmation until they have voted at the ballot box.

All saying the same thing. And then there was this from Senator Chris Murphy of Connecticut, one of the brightest lights in the Democratic caucus. He was right out of the gate with a statement calling this a, quote, red alert moment for the American people. He then explained what he meant to reporters.


SEN. CHRIS MURPHY (D), CONNECTICUT: It's absolutely hypocrisy for the majority leader to move forward on a vote now when he wasn't willing to move forward on a vote ahead of the 2016 election.

REPORTER: What do you think Democrats can do?

MURPHY: We hold -- we hold Mitch McConnell to the precedent that he set in 2016. It's not a precedent I agree with or agreed with, but we should expect that he'd be consistent. If he wanted the voters to weigh in on the Supreme Court in 2016, he should have allowed the voters to weigh in on the Supreme Court in 2018.


MURPHY: Senator Murphy will be joining us here live in just a moment. But that is -- that's what the Democrats are saying, right? You wouldn't consider President Obama's nominee until after the election in 2016. Then your nominee will not be considered until after the election in 2018, which incidentally, will give Democrats a chance to try to win control of the Senate in 2018 which would give them the right to say yes or no to the nominee.

Now, I know what you're thinking, ooh, Democrats, right? Up on your hind legislation, nice. But impotent, right? What can you actually do? You're in the minority.

All right. Two things to keep in mind here. Number one is Big Luther, who is not there anymore. The junior U.S. Senate seat from Alabama was held by Big Luther Strange, Republican, last year when the Senate confirmed the last Supreme Court justice Neil Gorsuch. But Luther Strange is gone now. He has been replace by a Democrat, Doug Jones. And so, the Democrats have 49 seats.

With Senator John McCain out and home in Arizona for health reasons, what that means is if Democrats hold together in one big "we're not doormats" caucus, the only thing they need to block President Trump from installing his chosen nominee on the Supreme Court is precisely one Republican vote. That's one thing to know here, the number one.

Here's the other one. This last election, presidential election of 2016 defied lots of expectations, broke lots of political norms, threw out a lot of what we thought were political rules. And although it didn't necessarily get a lot of attention at the time, one of the rules that was abandon and broken and left behind in the 2016 election was the no litmus test rule. For decades, presidential candidates and presidents have insisted they have no litmus test for Supreme Court nominees. There is no one single issue on which a nominee's position is a definite deal-breaker as to whether or not they're going to get appoint to the court.

For decades, there has been this game every four years, right? Madam candidate, will you appoint justice who pledge to rule that the death penalty is unconstitutional? And the candidate comes back and says, come, come, I have no litmus test on any issue. Mr. Candidate, will you appoint judges who will pledge to overturn Roe versus Wade to make abortion illegal? And the candidate faithfully says, even when you know what the answer is, they always say oh, come on now, you know I have no litmus test on any one issue for any potential judge.

That's been the way it has been for decades. In this past election, though, in 2016, that went away. On both sides, Democratic candidates, Hillary Clinton and Bernie Sanders both said that they would only appoint nominees to the court who would overturn Citizens United to get dark, secret and corporate money out of politics. The Republican nominee, who ended up winning the presidency, said that he would only appoint judges who would overturn Roe versus Wade, who would pledge to make abortion illegal.


MODERATOR: What I'm asking you, sir, is do you want to see the court overturn? You just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

DONALD TRUMP, THEN-PRESIDENTIAL CANDIDATE: Well, if we put another two or perhaps three justices on, that's really what's going to be had. That will happen, and that will happen automatically, in my opinion, because I am putting pro-life justices on the court.


MADDOW: Anthony Kennedy announced his retirement today, was the last Republican-appointed Supreme Court justice who had voted to affirm abortion rights. He didn't do so in every instance. He cast lots of anti-abortion votes of various kinds.

But when it came down to the basic question of whether or not abortion could be made illegal, whether or not Roe versus Wade should be overturned, he was a no. He was the firewall against conservative judges overturning Roe versus Wade and making abortion illegal in this country. Now unlike previous elections where presidential candidates refuse to say if they had a litmus test for a nominee, refused to say they would get any specific pledge on any specific issue from anybody who they nominate to the Supreme Court, in this last election, candidate Trump explicitly pledged, and he has since affirmed this promise that he would appoint only Supreme Court justices who will flip that vote.

Which means if Trump gets his nominee installed on the court, say goodbye to legal abortion in the United States, and a lot of other things besides. I mean, Justice Kennedy was the deciding vote, seriously, on the issue of executing children, which presumably Trump Republicans will now want to try to bring back, and now, Anthony Kennedy won't be in their way. I mean, Kennedy was the deciding vote on same-sex marriage rights and all sorts of other things.

If you just look at that overturn Roe versus Wade pledge from Donald Trump, just look at that part of it, and then do that very simple math again, right? Bye-bye, Luther Strange, hello Doug Jones. Democrats are at 49 seats. They only need one Republican to peel off.

Now, no matter the specific policy positions or the liberalness or the conservatism or the complicated home state politics of any particular Democratic senator, no Democratic senator has a reason to volunteer to be a doormat on the issue of the Supreme Court, right? Democrats as a unified block, every single one of them, they have no reason to go along with any meetings and hearings, any votes on the Supreme Court nominee before the election, right? Simply because that's the standard Republicans insisted on for the last Supreme Court vacancy, and so Democrats can reasonably insist no matter the rest of their politics, can and should and sort of must reasonably insist that the same standard will happen this time around too, right?

I mean, every Democratic senator in the country is about to hear from every single one of their Democratic constituents every day from now until the election until it's clear that the Democrats will all be unified on that no doormat caucus point. If Democrats, if the 49 Democrats hold together on that plan, and there is no reason they should not, thanks to Trump's promise that his nominee will be the deciding vote to make abortion illegal in this country.

Based on the Doug Jones, Luther Strange math, what it means is that Democrats only need precisely one Republican vote to stop Trump's nominee from getting through. So, what happens next here boils down to a very simple thing. Is there one Republican in the U.S. Senate who might not want to be the deciding vote that made abortion illegal in this country? Is there one?

Senator Susan Collins of Maine, November of last year received the Barry Goldwater Award from the Planned Parenthood Federation of America in partnership with its Republican advisory board thanking her and recognizing her for her courage in championing reproductive health care issues and fighting to ensure the rights granted to women from within the Republican caucus in the United States Senate.

Senator Lisa Murkowski of Alaska, also a pro-choice Republican senator. In January of this year, just a few months ago, Senators Murkowski and Collins both voted no on a piece of Republican legislation that would have been an abortion ban, that would have instituted a 20-week ban after which women coast-to-coast wouldn't be allowed to access abortion services.

Both Senator Collins and Senator Murkowski have cast plenty of anti-choice votes in their careers of various kinds including for anti-abortion judges, but in this case, what they would be doing is providing the deciding vote literally and directly to overturn Roe versus Wade and make abortion illegal in America. It's not theoretical, and it's not complicated. You only have to be able to count to one.

And all that either of them has to do to avoid casting that deciding vote is say you know what? What was fair for the Scalia seat when that came open is fair for the Kennedy seat now, now that that seat's open too. Let's just vote after the election, like we did with the Scalia seat. That's all.

So what happens next? What happens now is that as of today, we embark as a nation on a four-month sprint of everybody in the country having a stake in this, all right, of everyone with a Democratic senator and everyone with a Republican senator having a thing to focus on and a thing to aim for. If Democrats are going to do this, every single Democrat in the Senate will agree to not be a doormat, that shouldn't be that hard, and every single Republican senator, including the pro-choice ones, will have to decide if they want to go down in history as the deciding vote to overturn Roe versus Wade and make abortion illegal in the United States.

And I know that seems nuts, but it is more nuts than what happened in freaking Alabama being the thing that got Democrats to 49 seats? I mean, this is America. Weird stuff happens.

If Democrats pull this off, if they stand together and they fight this for the next four months and they win this, they will stop the Trump Supreme Court nominee. They will save, among other things legal abortion in this country, at least for the time being. They will prove themselves not to be doormats, who Republicans expect them to be, right, and they will give themselves a chance of winning back control of Congress in Washington, which will give them a thumbs-up or thumbs-down say in who the next nominee.

They've got four months to do it, starting today. That's it. Simple. No muss, no fuss, easy peasy, right?


MADDOW: Here is what Democratic Senator Chris Murphy had to say on learning of the retirement of Supreme Court Justice Anthony Kennedy today. He called this, quote, a red alert moment for the American people. Senator Murphy said, quote, Senator McConnell set a precedent when he refused to hold a hearing on Merrick Garland. He should stick to the rule he set.

Under the McConnell rule, the Senate shouldn't consider any nominee until January, and I expect Republicans in the Senate to honor that rule they all agreed to just two short years ago. If McConnell insist on starting proceedings on a radical Trump nominee, I will do everything to stop him.

What is in the senator's power in this instance?

Joining us now is Senator Chris Murphy of Connecticut.

Senator, thank you very much for being with us tonight. Much appreciated.

MURPHY: Thanks a lot.

MADDOW: So the standard that was set by Senator McConnell when the Senate Republicans refused to allow a vote on president Obama's nominee after the Scalia seat became open in February of 2016, you've obviously cited that as a precedent you didn't agree with but you think should nevertheless be followed in this instance, that there shouldn't be a vote here until after the midterm elections and the new Congress is seated in January. Do your Democratic colleagues all agree with you on that?

MURPHY: Well, every single one of my colleagues that I've heard from today agrees with me. This was made very clear by Mitch McConnell, but not only Mitch McConnell. He had 50 other Republican senators that agreed with him who thought when you were that close to an election, you needed to let the American people speak. And so, while we're sort of focusing our energy on McConnell today because he is the progenitor of that precedent, it is also important to remember that all of his colleagues agreed with him as well.

And while you are right to point out that maybe we are able to get one or two Republicans to break based upon what would happen to the issue of choice if Trump was able to get a new justice, we also only need one Republican to be significantly enough worried about the mind-blowing hypocrisy of having a different standard for Trump than you had for Obama to also stand up and say we should wait until after the election.

MADDOW: I feel like with Senators Murkowski and Collins, I can look at them and see what they've said about choice and see what their records, their mixed records have sort of been on the abortion rights issue over time to recognize that this is something they may not want to be the decisive vote that will likely result in the overturning of Roe versus Wade and the making abortion illegal.

When it comes to a Republican who's uncomfortable with rough, bare hypocrisy in terms of the treatment of Democratic versus Republican presidents, I don't know what to look for to recognize that.

MURPHY: Yes, no, I think you are right, which is why we have to be able to walk and chew gum at the same time. So, I'm ready to make this argument anywhere and everywhere that McConnell set a precedent that he has to hold to.

But we also at the same time have to remember that for Murkowski and Collins in particular, past may be prologue. Remember, it was the fury of advocacy all around this country, around the respective repeal of the affordable care act, something that most pundits in this country thought was a forgone conclusion when Republicans took control of the White House and the Senate that led to those two senators going in and casting very courageous and historic no votes. McCain gets the credit, but Murkowski and Collins voted no as well.

And so, we have to walk and chew gum at the same time, make the argument on precedent, but then go out and build a grassroots army of people in those states and throughout the country who are going to make the case that there will be a price to be paid at the polls if Republicans insist on pushing this nominee, a potentially radical nominee through.

So we've got to good out there and build a movement at the same time that we make the argument internally to our colleagues.

MADDOW: I feel like the reaction yesterday, the reaction this week to the Muslim ban ruling, the reaction today to the Supreme Court's ruling on union rights, which overturned more than 40 years of precedent in terms of protecting union rights in this country, those were depressing developments for Democrats and centrists, I think. They weren't necessarily unexpected developments, but they were nevertheless depressing.

When the Kennedy retirement news came out, I think people sort of thought maybe Clarence Thomas might retire today and that would give the president an opportunity to replace Clarence Thomas with another Clarence Thomas. The Kennedy retirement I think hit people like a gut punch.

But in your tone, I hear not just a sort of desire to fight here, but I hear a little bit of optimism in terms of how this fight might go over the next few months.

MURPHY: Yes. I'm fired up and everybody I talked to today is fired up, because though the highlight here will be about the future of choice in this country, we really have at a fulcrum moment between democracy and plutocracy. The only thing that stops you from moving into a country that is controlled exclusively by the elites is the ability of individuals to be able to politically organize.

And what the court has been doing consistently has been taking away that right, either to vote or to vote in clean elections or to collectively bargain. And the idea that you are going to now have five Supreme Court justices that are going to continue to take those rights away, potentially sending us into a downward spiral to a world in which regular people have no ability to affect outcomes in Washington, if that doesn't get you fired up for this moment, then I don't know what does.

And so, there are a lot of things at stake, not just choice in this decision that the Senate has to make. And that's why I think we have to go out and build that army while we argue internally with our colleagues.

MADDOW: Senator Chris Murphy of Connecticut, thank you for being with us. I know it's a very busy, busy night, sir. Thank you for being here.

MURPHY: Thanks.

MADDOW: All right. I want to bring into the conversation, my friend Dahlia Lithwick, who's a senior editor and legal correspondent for

Let me read you something, Dahlia. I'm going read to it you and you can tell people how they feel about this. This is Dahlia today.

Quote: Many of us predicted that Trump would not allow us to replace him with someone who would dismantle his legacy. We were wrong. Many of us believed that a life-long devotee of dignity, civility and the rule of law would not wanted his work tarnished by a president who routinely attacks individual judges and the very notion of an independent judiciary. We were wrong.

You are not totally surprised that he retired, though, am I right?

DAHLIA LITHWICK, SENIOR EDITOR, SLATE.COM: No, I mean we had heard rumor, Rachel, even a year ago that he was tired. He was wearing out. His wife wanted him to step down. So, we knew it was coming. I think I was one of those folks who thought Justice Kennedy is the linchpin for too much, for gay rights in this country, for affirmative action, for abortion rights, as you said, for so many criminal protections, so many elements of racial justice.

He's not going to walk away and let Donald Trump replace him with, like, Judge Judy. That's crazy. And I really believed that the idea of encroaching Trumpism would hold him solid. And I'm telling you, I was dead wrong about that.

MADDOW: Well, the ruling or the opinion that he wrote, the concurring opinion in the Muslim ban case is very short, one and a half pages from Justice Kennedy. Was he signaling us in that opinion, in that short statement that he was either giving up or that he was in agreement with the way the country is going and the type of successor that President Trump might pick?

LITHWICK: It was such a profoundly strange concurrence. It was him alone essentially saying, look, I'm adding my voice to the majority opinion. The president is within his executive power rights to do this and national security and blah, blah, but we're kind of worried and, you know, somebody should really hold these branches in check, because I guess it's not the judicial branch.

And he even had a line in there about anxious countries watching the United States for signs of the decline of democracy. So, you almost had this sense, Rick Hassan wrote a piece for us at slate yesterday of him just saying well, best of luck. I'm out. And it read a little like that.

It was really -- for somebody who has always said, you know, the courts alone can fix it, and I alone on the courts can fix it, it was such a change of tone that I think it signals some kind of sense that whatever is going on right now, the judicial branch is not going to be the bulwark that he we thought it was.

MADDOW: Dahlia, we just spoke with Senator Chris Murphy just a moment ago before we brought you on talking about the plan, what seems to be an active plan now by Democrats to try to push a vote on the successor to Justice Kennedy until after the mid terms. Obviously, that was the strange new standard set by Senator McConnell when Justice Scalia died. There was an opening on the court and the Republicans didn't want to allow President Obama to name a successor nominee for Justice Scalia.

Democrats it looks like are going to try to insist that that same standard be followed and that there not be hearings or a vote on this new nominee until after the midterm elections could conceivably, conceivably put the Senate in Democratic hands.

What do you make of that as a strategy?

LITHWICK: I mean, you nailed it in the beginning, Rachel, when you said this is a power problem. Democrats don't control the Senate. They don't control the Judiciary Committee.

So I think that you're right and Senator Murphy is right to say that this is not going to be something that Senate Democrats can do on their own. They are going to need behind them all the folks who didn't prioritize the Supreme Court in 2016 when there was an open seat and two octogenarians sitting on the court, and Democrats just didn't prioritize the court. Republicans did 2-1. They broke for Donald Trump.

We have to -- to the extent we can't time travel, Rachel, I think what we can do now is say holy cow, our grandchildren are going to live in a world where their voting rights, labor right, environmental rights, reproductive right, LGBTQ rights, all of it, including children at the borders is on the hook.

And if we don't organize around the court in a way that we really failed to do in 2016, then it's not on the Senate, it's on us.

MADDOW: And it's not an abstract thing anymore. It's four months starting now, between now and the election. This is sort of put up or shut up time if that kind of activism is going to make a difference.

Dahlia Lithwick, senior editor and legal correspondent for "Slate", really appreciate you being here, Dahlia. Thank you.

LITHWICK: Thanks, Rachel.

MADDOW: All right. We've got -- Cecile Richards is going to be joining us in just a few minutes. We've got some other big news unrelated to the Supreme Court that we've got get to tonight as well.

Stay with us. Lots coming on.


MADDOW: What if birth control was illegal? What would you do if birth control was illegal?

It used to be illegal in some places, but then Griswold versus Connecticut. Estelle Griswold versus a law in Connecticut about birth control that case was decided 7-2 by the Supreme Court in 1965. It gave married couples the right to access birth control regardless of where they lived.

Over the next decade plus, the Supreme Court overturned laws in other states that banned birth control for unmarried couples or for teenagers. Access to birth control became the law of the land. Likewise, famously, Roe versus Wade began with a Texas law against abortion. It ended in 1973 with abortion rights guaranteed by law in all 50 states.

But check this out. Some of the old bans on abortion, bans that existed before the Supreme Court ruled in Roe versus Wade, some of those old bans are still on the books. That's true in ten states. The only thing stopping them from being active, functional law is that Supreme Court decision.

A whole bunch of other states have put trigger laws in place to ban abortion, in some cases, instantly. The second the Supreme Court overturns Roe versus Wade. Even more states would likely follow suit.

The Center for Reproductive Rights, the people who that fights anti- abortion laws in courts, one of the efforts to do that, they did a study and found if Roe versus Wade is overturned, legal abortion would immediately be on the chopping block in 33 out of 50 states in this country.

A clear majority of Americans want and expect that abortion will be legal in this country. The Supreme Court has agreed since 1973, but the Supreme Court is about to change radically on that issue specifically. And this sometimes feels like a perennial fight in this country. In this case, it's not. In terms of the legal, constitutional protected right to access abortion services in this country, this may be the pull the fire alarm moment that you have been expecting. I think.

Joining us now is Cecile Richards, the former president of Planned Parenthood. She is the author of "Making Trouble: Standing Up, Speaking Out and Finding the Courage to Lead."

Cecile, thank you for being here.


MADDOW: Is this the "pull the fire alarm" moment?

RICHARDS: This is definitely the break the glass moment, yes.


RICHARDS: And I guess what I'm hearing definitely in the last few hours is that women already are. This is really throw kerosene on a fire that is already burning among women in America, and I think it's going to have enormous implications for the midterm elections.

MADDOW: What does that mean in terms of the kinds of organizing reaction, activism you're seeing?

RICHARD: You know, it's interesting. In the last 18 months, 20 percent of America has marched on some issue, and the number one issue has been women's rights. We know of course the women's march was the biggest ever in recorded history, and ever since then women have been organizing, running for office as we saw earlier, upsetting elections, women electing Doug Jones in Alabama.

Women are highly motivated right now both to run for office and to turn out to vote. And they are deeply concerned about the future of reproductive rights in this country and the future of Roe. I know you showed it earlier, but this is the first time we've had a presidential nominee and now president that I remember saying that, in fact, he will only appoint judges to the court that want to overturn Roe versus Wade and make abortion illegal. Women are very aware of that.

MADDOW: And it's something we fight about and the candidates get asked about all the time.


MADDOW: There really is difference.

RICHARDS: Completely different.

MADDOW: The president who was then a presidential candidate said yes, he does have a litmus test. His litmus test is roe versus wade. He won't even consider any nominee for the court who wouldn't overturn Roe.

RICHARDS: That's right.

MADDOW: When the nominee ultimately gets to a hearing in the Senate, the nominee will be asked whether or not he or she will pledge to overturn Roe. And the nominee will definitely- because they won't be an idiot, will definitely refuse to answer. Should we see that pledge from President Trump as essentially the answer to that question, regardless of what the nominee says in his or her hearing?

RICHARDS: Well, I mean, certainly, we have to look at the record of the nominees. But folks who have been put forward already are the most extreme right wing nominees that you can imagine. That's been said by several senators already. So, I hope that whoever is nominated by this president, people will look at their ready.

But, yes, they should look certainly with a skeptical eye about women's rights. This is -- as you said, this is a right women have had for more than 40 years in America, and it is wildly unpopular to think that you would actually now take away this right for not only women today, but generations to come.

MADDOW: In terms of the strategy and what happens here, we're about four months away from the midterm election. Democrats have high hopes, but it would be an uphill battle for them to win either the House or the Senate. What do you make of this strategy which we're talking about Senator Chris Murphy earlier in which a lot of Democrats are already talking about today that they should be able to peel off one Republican senator who doesn't want to be the vote effectively to overturn Roe in this country?


MADDOW: That there should be a delay until after that midterm vote, until after the new Congress is seated before -- before any hearings happen. That's obviously what the Republicans did with Merrick Garland. Democrats were absolutely outraged by it but Republicans did it.

Should Democrats do it now?

RICHARDS: Absolutely.

MADDOW: Do you think they will? Do you think they can?

RICHARDS: It seems like that's what everyone has come out of the gate saying and I think that's really right. We're like four months away from a very, very important election that controls the future of the United States Senate. And they should do the same thing -- this is what Mitch McConnell wanted before, and they should hold him to his word, do the same thing now. Wait until after the election.

Let the American people speak. American voters know what's at stake in the Supreme Court. It's not simply women's right. It's LGBTQ rights. So many decisions where Justice Kennedy has been the deciding vote. I think it's really than that that we do that.

But I will tell you, we're not going to wait. Folks at Planned Parenthood and women aren't going to wait. We're going to be mobilizing all across the country to make sure that our senator know you cannot support a justice of the Supreme Court that is going to overturn Roe versus Wade.

MADDOW: Do you think there are Republicans who will agree to --

RICHARDS: Well, we definitely know certainly two women Republicans who have been supportive of Roe, know how important it is, not only to women across the country, but women in their own states. And I'm sure they'll be hearing from women in those states as will every Republican and Democratic senator in the country.

Listen, women are on fire. Women are the most important, potent political force in America, and have I confidence that they are -- I mean, they're already organizing. My phone has been blowing up today.


RICHARDS: Women are ready to make sure that they protect their rights and that we make progress and that we frankly turn the country around in November.

MADDOW: Cecile Richards, the former president of Planned Parenthood, author most recently of "Making Trouble" -- Cecile, thank you for coming in. Much appreciated.

RICHARDS: Good to see you, Rachel. Thank you.

MADDOW: All right. Much more ahead tonight, stay with us.


MADDOW: They tried blocking him with protests and with letters, also with snazzy 1980-style visual effects.


UNIDENTIFIED MALE: Robert Bork could have the last word on your rights as citizens. But the Senate has the last word on him. Please urge your senators to vote against the Bork nomination, because if Robert Bork wins a seat on the Supreme Court, it will be for his life, his life and yours.


MADDOW: When Ronald Reagan picked Robert Bork, the opposition was multifaceted. It included that ad narrated by Gregory Peck. There were mass protests. There were vigils in front of the court. People organized phone banks, they sent letters to their senators. Bork's nomination to the court has gone down in history as one of the most intense, contentious fights for a Supreme Court seat ever.

The opposition to him was successful. Bork did not end up on the court. He was rejected by a vote of 58-42. It was most of the Democratic majority plus six Republicans who voted no.

The fight to replace Anthony Kennedy on the Supreme Court started today. It's already maybe that contentious, but this time that's without knowing who the nominee is to replace him.

Joining us now is Michael Beschloss, NBC News presidential historian.

Mr. Beschloss, thank you for being with us tonight.


MADDOW: What are you thinking is relevant historical context? We talk about the unprecedented nature of the Republicans' action last year or in 2016 when they held open a seat so President Obama couldn't name a nominee. Whenever I say something is unprecedented it makes me feel at sea to know how to compare it to our history.

How are you looking at this today?

BESCHLOSS: Me too. That was a stolen seat. School children 50 years from now will read about the stolen seat I think that caused this to happen when Donald Trump was elected in 2016, and what Mitch McConnell did.

And the other thing, Rachel, it's almost poetic that Anthony Kennedy has the seat that Robert Bork was denied. When Bork was denied, there was another one, Doug Ginsburg, who was found to have used marijuana, which was a deal breaker in those days and then came Anthony Kennedy.

I think we're now living in the age after Bork. Before then, the Senate might say, this guy -- this nominee cannot be confirmed because there's an ethical problem. Ever since, Bork, there's been a feeling that we Americans and members of Congress have a right to say that a justice is not fit for the court if that person stands opposed to central things that Americans believe.

MADDOW: In this case, we don't yet know who the nominee is. We do know that President Trump said he will only pick a nominee who will overturn Roe versus Wade, and that, of course, would be divisive in terms of the Kennedy seat. Have there been previous examples or anything to look to in history in terms of this Democratic strategy now to try to push the vote, to try to delay this until after the midterm elections, essentially as pay back for what happened with Merrick Garland, but practically to give Democrats a chance to win back the Senate and have say over who the nominee is?

BESCHLOSS: Absolutely. The importance of this, that's the way our system operates, that people feel so strongly. We are about to see in the next four months one of the most intense political struggles I think probably in American history, and from my point of view that means the system is working.

MADDOW: Michael Beschloss, NBC News presidential historian -- thank you, sir. It is great to have you here tonight. Thank you.

BESCHLOSS: Thank you, Rachel.

MADDOW: All right. Big night, lots to get to still. We'll be right back.


MADDOW: This may be a tall order but it is a legally binding order nonetheless. As of late last night, by order of a federal court in San Diego, the Trump administration has to clean up the moral and practical (AUDIO GAP) little kids from their parents at the border. This new federal court ruling said all kids under the age of 5 that have been taken away from their parents have to be given back within 14 days. For kids older than 5, the court is giving the Trump administration 30 days to give the kids back to their parents.

Policy on the border has been chaos. That chaos is part of why this judge said he intervened. And it's real chaos, of parents who have no idea where their kids are, some parents who have been deported to other countries without their kids while the U.S. government holds their kids here.

Well, now, this federal court has told the Trump White House to fix this immediately, put these families back together now, you are ordered to.

Now, the question is can the administration get that done? Could this court order work? The clock started ticking on this late last night. But this is a legally binding order as of now.

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


Good evening, Lawrence.



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