IE 11 is not supported. For an optimal experience visit our site on another browser.

Transcript: All In with Chris Hayes, December 24, 2020

Guests: Jeff Merkley, Jena Griswold, Waleed Shahid, Meagan Hatcher-Mays, Jon Meacham, Brian Fallon, David Roberts


If you flipped Arizona, Georgia, Wisconsin which is a total of 43,000 to Trump, out of nearly 160 million votes cast nationwide, the Electoral College would have ended up tied 269 to 269 and the U.S. would be in a mess. Adding states and adding senators could fix America's unbalanced minority rule. Democrats are pushing to expand the Supreme Court. The Biden Blitz: Joe Biden should do everything at once flooding the zone with executive orders in day one.



CHRIS HAYES, MSNBC HOST (voice-over): Tonight, on a special edition of ALL IN. 2020 is ending, the Trump presidency is ending, and American democracy has just dodged a bullet. Now, as we enter 2021, it's time to fix the system.

UNIDENTIFIED MALE: In my own lifetime, Republicans have only won the popular vote once.

UNIDENTIFIED FEMALE: Even if you're from a small town like me with more elk than people or a big city, your vote should count equally.

HAYES: Tonight, we'll talk about big structural changes we can make to protect our democracy, like abolishing the Electoral College, adding more Supreme Court justices or adding two more states to change the balance of power.

UNIDENTIFIED FEMALE: The way the Senate was designed was to give a lot of power to a little group of people.

HAYES: All that and what Biden can do on his own to ensure we never have a year like 2020 again, when ALL IN starts right now.


HAYES (on camera): Biden won the presidency decisively. And he did it in a country that is nearly as polarized as it has ever been. We know basically the final vote count, right? Biden's margin of victory is over seven million votes, four and a half points in the popular vote. It's a larger margin of victory than Barack Obama's win over Mitt Romney in 2012.

Obama, of course, was an incumbent then running for reelection with all the advantages of that. And it's larger than George W. Bush's win over John Kerry in 2004. Again, and then come to defeating a challenger. And get this. That 51.3 percent, it's the highest vote share of any candidate challenging a sitting incumbent since FDR's win over Herbert Hoover back in 1932.

And that's because it is hard to beat incumbents. It's so hard in fact that only four elected presidents have lost in the last 100 years. But the country rejected Donald Trump. And the week since election night, we've been on this roller coaster ride. The polls were off again and Trump looked like he might pull it out on election night.

And then of course, there was the long drawn out counting process and we waited four days for the outcome in a few states. And then, of course, there was the President's ongoing attempted coup, for lack of a better or more precise word. In the end, Joe Biden won cleanly and clearly and fair and square.

But as that comes into view, we should not forget that we also dodged a bullet. I mean, the outcome of this election came down to just a few tens of thousands of votes in the right places. Biden won Arizona flipping it blue for the first time in more than 20 years by just over 10,000 votes. In Georgia, the margin was hardly any bigger, less than 12,000 votes. And in Wisconsin was a little more than 20,000.

Those three states Arizona, Georgia, Wisconsin have a combined total 37 electoral votes, and Joe Biden won them by a combined margin of just under 43,000 votes. If you flipped just those 43,000 to Trump, out of nearly, again, 160 million votes cast nationwide, the Electoral College would have ended up tied 269 to 269, and we would be in a mess, a nightmare scenario where the House of Representatives would get to decide the election, but with each state delegation getting only one vote.

Now, if you just add one congressional district to those three states, say Nebraska's second district where Biden won by 22,000 votes, well, that's the whole ballgame, a second Trump term. It would take only 65,000 votes, a tiny, tiny, trivial fraction of the entire electorate going the other way. 65,000 votes in three states one congressional district against a popular vote margin of seven million of the popular vote margin of four and a half percent.

This is the problem with the Electoral College. It's random at a certain level. I mean, the thing itself is a slapdash compromise thrown together at the end of the Constitutional Convention as they were way out the door. And for most elections in our history, the outcome of the Electoral College has been the same as the popular vote.

But now, they are systematically diverging. I mean, it's happened twice in the previous five elections, each going in the direction of the same party, the Republicans winning without a popular vote, and it is now a ticking time bomb. If we do not change it, it will absolutely cause some kind of constitutional crisis and democratic breakdown. I am sure of that.

Now, scrapping the Electoral College in favor of a simple popular vote would be an enormous change requiring either a constitutional amendment or a coordinated interstate compact. And both will be hard. They would represent huge structural shift in how the country is governed. But that's the history of this country. We used to not have equal production due processes as (INAUDIBLE) in the 14th amendment.

Before the 17th amendment, we didn't even directly elect our senators. Woman couldn't vote until 100 years ago. We need large scale democratic reform like we've done before if we are going to save American democracy.

I'm joined now by someone who has been fighting for that much needed change introducing a package of bills to ensure equal representation for every American called a blueprint for democracy Democratic Senator Jeff Merkley of Oregon joins me now. Do you think as you look at this result about how close we came, Senator?

SEN. JEFF MERKLEY (D-OR): Oh, absolutely. It's stunning when you have millions of votes different, that it comes down, as you put it, to what 65,000 votes. And I must say, it puts shivers down my spine.

HAYES: You know, there's both the democratic legitimacy problem but also just the sort of jerry-rigged nature of this process. We get the Safe Harbor deadlines and the states announcing the electors and all this opportunity for mischief that the Trump administration, the Trump campaign has pursued with without actually winning. But we wouldn't have any of this if it was just straightforwardly who won the most votes.

MERKLEY: Oh, absolutely. And that's why I've introduced the constitutional amendment to do that. But as you know, and I know, it's very unlikely we're going to get the two-thirds we need in each chamber plus three-quarters of the state to agree to a constitutional change because too many states are red states that want to use every strategy they possibly can to retain power, even when it represents massive misrepresentation of the American people.

HAYES: Yes. What's strange about it, too, is that there are tons of Republicans who are not benefited by this. I mean, you know, millions and millions of California Republicans whose votes essentially don't count. There are Republican voters in your state of Oregon. I'm sure you hear from them a lot. And, you know, they don't -- they also kind of don't matter in this current setup. So, it's in some ways, it's an insult to voters across the political spectrum, even though it sort of has a systematic bias in terms of one political coalition.

MERKLEY: Well, and we have kind of a bizarre twist that occurred in our history, in that you have the situation where the Constitution says the state can choose to allocate the votes in the Electoral College as it as it wants, and states do it in a different fashion. But most states have decided to give all of their electoral votes to whoever wins the popular vote in their state. And they do that to magnify the importance of their state and hope that candidates will campaign there.

But the result is that blue states are basically states that the Republican candidate doesn't visit red states the Democratic candidate ignores. And it comes down to a series of swing states. So, most of the country is ignored in the presidential campaign, as these small set of swing states are fought over.

And that's not healthy for our country at all. It'd be much healthier under a situation where every vote is counted to have the candidates of both parties proceeding to say, I know I need to harvest votes everywhere I can find them. So, I'm a Republican, I'm going to those blue states like California to harvest some more Republican votes and similarly on the other side. It'd be much better in terms of the dialogue that's called out during the election.

HAYES: You know, one of the other things this weird post-election period is exposed is that -- I mean, it's even unclear whether we get -- you get to vote for president, right? I mean, when they were toying with the idea -- as the president is toying with the idea of states overturning the popular vote in their states, you know, they can't do that because of state law, but it's just state law binding them.

Like, my understanding of the Constitution is a state could pass a law that doesn't do that, that comes up with some other way of awarding the electors that doesn't give it to the people that want -- you know, the candidate that won the state.

MERKLEY: No, that's absolutely right. And so, you could have a state saying, hey, you know, we're -- we have a Republican legislature. We're going to allocate electoral votes to whoever the Republican candidate is, regardless of how the vote comes out in our state. And that leads us to an interesting twist because that power can be stood on its head. And that's where the interstate compact that you mentioned in the introduction comes in.

If enough states say, by law, that they will award their electoral votes to the individual getting the most popular votes nationally, suddenly, we have a national popular vote system. And that effort is well underway.

HAYES: Yes, there are a number of states -- I forget the number off the top of my head, but I think we've got -- how many do we have now in the NPV. The compact is, it doesn't kick in until you get the number of states that would go over 270. At which point it would become determinative of the outcome, right?

MERKLEY: That's right. So, we have 15 states and the District of Columbia that have opted in, and that totals up to 196 electoral votes. So, 74 more are needed to get to 270. And so, we're two-thirds over two-thirds of the way there, three-fifths of the way there. So, here we go. It definitely is possible to do it and there's a lot more states still that have initiative systems where the issue could be put before the people of that state.

And so this is well worth pursuing across the country. It's really the only way we can get there is a national popular vote compact.

HAYES: That's a fascinating point. So, in states where obviously you have Republican legislators who are not going to agree to this, you're saying that if there's a -- if there's a state ballot initiative process to go that route.

MERKLEY: That's right. Absolutely.

HAYES: All right, Senator Jeff Merkley who has been a strong voice for this, to me, utterly obvious and straightforward constitutional reform, thanks for making time.

MERKLEY: It's a very important issue for America. We need to get it done. Thank you, Chris, for covering it.

HAYES: In 2000, George W. Bush won Florida by 500 votes 537 while al gore won the national popular vote by 500,000. Once again this year, we see a similar pattern, right? Joe Biden wins by seven and a half million votes, seven million votes and wins the needed states by just 60,000. It's another reason the Electoral College is so dangerous. The margins of victory in individual states are going to be closer and tighter, and much more subject to mischief or litigation or outright attempt to steal and overturn the national vote.

With me now is Jena Griswold, Secretary of State of Colorado, who state joined the national popular vote interstate compact last year, a multi-state agreement that would ensure the candidate who wins the popular vote also wins the Electoral College and Waleed Shahid spokesperson for Justice Democrats, an organization that supports the abolition of the Electoral College.

Secretary of State, let me -- let me start with you. You were -- you're a strong advocate for Colorado, joining this compact. What was that process like and why did you want to see that happen?

JENA GRISWOLD, SECRETARY OF STATE, COLORADO: Well, Chris, thank you for having me on tonight. And I was a strong advocate. So, we pushed legislation in 2019. Our state legislature passed it. But to tell you, it actually went on the ballot this last election. And the people of Colorado voted. They decided to pass the national popular vote compact. And Colorado is now the first state to adopt the national popular vote by the people's vote. And I just think it's fantastic.

As Secretary of State, I'm guided by the principle of one person, one vote, and that's what national popular vote does. So, I'm excited to have this conversation and to continue to see the momentum of the national popular vote compact.

HAYES: I think some people think this is a fairly abstract affair, and it's happened twice and it doesn't affect our politics in the intervening periods. But you're someone who works intimately in our politics at the ground level. And I wonder if you think it has a kind of systematic skewing effect to how the parties operate what our politics look like.

WALEED SHAHID, SPOKESPERSON, JUSTICE DEMOCRATS: Yes. I think everything that Democrats want, whether you're a conservative Democrat or a progressive Democrat, whether it's, you know, action on health care, clean energy jobs, criminal justice reform, requires a democracy that allows the majority of people to govern.

And right now, with the Electoral College and several other institutions in our country, majorities have a really hard time governing. And so, Democrats of all stripes, lowercase D Democrats should support ways to make it easier for majorities to govern. And that that brings together, you know, all the different factions of the party.

And one thing that is just has been so absurd to me is that in my own lifetime, Republicans have only won the popular vote once. And that is not a help. You know, people keep asking why Millennials are angry. That is a reason why we're angry, because it's only been once and then they get to, you know, look at the 2016 election. They lose the popular vote, but get to a point three Supreme Court justices.

With the things that Secretary Griswold is working on in Colorado and other states across the country, that would reform some of these arcane institutions that would help majorities govern.

HAYES: Secretary, you guys did a -- in your state, you did a ballot initiative. You said that was the first state that did that. Do you think this is a model for other states, because there's a lot of states in which because the issues become so partisan, and the split has a partisan advantage and disadvantage, I don't think any Republican state legislature anywhere is going to let this happen.

GRISWOLD: Well, in the past, Republican state legislatures have passed this law. And I think that advocates for free and fair democracy should look at all the tools in the toolbox. At the end of the day, if you ask most Americans, do you believe that your vote should count equally to other Americans? The answer is going to be usually yes.

And I'll tell you, as someone who grew up very working-class and rural Colorado up in the mountains, that a lot of people like me, rural folks, feel left behind. And one thing that I firmly believe in is that even if you're from a small town like me with more elk than people or a big city, your vote should count equally.

That is what national popular vote is about. It's about adding a level of fairness into our elections that is lacking.

HAYES: Well, and the Secretary brings up a point, Waleed, that is a bigger issue that in some ways, I think, is an increasingly defining issue of our politics, which is the kind of spatial polarization in America, and indeed, the kind of spatial inefficiency of the Democratic coalition, which is fairly tightly clustered, right? Joe Biden's won the presidency with fewer counties than anyone who's ever won, right?

Now, more people, seven million more people, because that's where the people are. But this sort of this kind of ways in which constitutional structures allow this minority to retain power, I think, even exacerbates that kind of divide between the different parts of the country.

SHAHID: Yes. I think that's true. And you know, there are ways in which Republicans are clinging on to the existing rules to enshrine that minority rule, so that they don't even have to appeal to a majority of Americans to win elections and govern. You know, even in New York, where I live, there were lines around the block where, you know, Black families, immigrant families, young people were voting.

And imagine if there was actually an actual, you know, operation to turn out votes in states like Illinois, New York, or California, the popular vote margin would have been way higher than seven million people in terms of Joe Biden's defeat of Donald Trump. And so, I do think that if you want to deal with polarization and gridlock in this country, and you know, actually bring people together, unify the country, you have to be able to break the institutions that perpetuate the polarization in the country and not actually solve it.

HAYES: Final question for you, Secretary. You know, you have this job. It's a very important job, and particularly a very high profile and important job if you happen to be a state that's a swing state where the margins stand, right. Colorado was not that this year. Joe Biden won fairly comfortably.

But I do think what we've seen is exposed that there's -- I mean, I guess I wonder, like, do you have confidence that every future iteration of a Secretary of State with tremendous pressure brought to bear on them at that margins of 500 votes, or 1,000 votes, or say 12,000 is going to be able to look the President of the United States or the party leadership in the eyes and not succumb to their pressure to overturn the votes of their state.

GRISWOLD: Well, I would say, the job of Secretary of State is important in all states, not just swing states, to make sure that people have their voices heard, you know, especially in a pandemic, making sure that elections are safe, secure, and people don't have to risk their lives to vote is extremely important.

And i will share with you. Over the last two years, we partnered in Colorado with the Native American tribes to increase participation rates by about 20 percent, which we are very proud of and love the partnership. But to your point, we need guardrails on our democracy. We cannot just have rogue elected officials try to undermine our elections in a really corrupt attempt to take power for themselves.

So, that includes reforming how states apportion their electoral votes. That's what national popular vote compact is about. It's also about a package of democracy reforms. We need federal law to make sure that every American has access to the ballot box. We need federal coordination to make sure we're countering foreign disinformation. And that list of creating America that Americans can believe in goes on, but I know we're going to get there and I just am so optimistic for our future.

HAYES: Jena Griswold and Waleed Shahid, thank you both for making time tonight.

Next up fixing the system that allows minority rule in the United States Senate. How more states and more senators could restore balance to American democracy right after this.


HAYES: One of the longest-lasting legacies of Donald Trump will likely be his judicial appointees filling the bench with conservative judges and justices, including, of course, three lifetime appointments to the Supreme Court. Now, the reason he's been able to do that is the Senate where all those nominees are confirmed or not confirmed, as in the case of Merrick Garland, and where the will of the majority of the country is not really represented.

I mean, over time, as the country has grown and Americans have clustered around population centers, the Senate has drifted further and further away from the median voter. So, we're now stuck in a situation where nearly 40 million Californians have the same amount of representation in the Senate, as the less than 600,000 residents in Wyoming and the less than 800,000 North Dakotans and one million Montanans.

So, short of getting rid of the Senate, I don't think that's going to happen, what to do about this really crazy structural undemocratic imbalance? Well, we could just do what we've done in the past in this country and add some new states to our union. Nearly four million Americans live in Puerto Rico and Washington D.C. They have zero representation in the Senate right now.

If we gave that diverse group of Americans four new votes in the Senate, that would go a long way towards creating something more truly representative out of that body. I'm joined now by historian Jon Meacham Rogers Chair in American Presidency at Vanderbilt University, author of His Truth Is Marching On: John Lewis and the Power of Hope. We should note he's also an unofficial adviser to President-Elect Biden. And Meagan Hatcher-Mays is Director of Democracy Policy at Indivisible, a progressive advocacy group. And she wrote about this issue for GQ Magazine, a piece titled The Senate is Broken, Washington D.C. Statehood Can Save It.

Let me start on that note, Meagan. I mean, so there's an argument for representation just from -- like the people of D.C. deserve to have representation. There's sort of broader argument you make in the piece about kind of balancing some of the structural problems of the Senate. What's the argument?

MEAGAN HATCHER-MAYS, DIRECTOR OF DEMOCRACY POLICY, INDIVISIBLE: Yes. I mean, the argument is, yes, as a D.C. resident, all I want for, you know, my life is to have voting representation in Congress. That would be great. But it also starts to address some of the structural inequities that are built into our democracy itself.

I mean, the way the Senate was designed, was to give a lot of power to a little group of people, mostly, you know, land-owning, white gentlemen, and to deny an enfranchisement, you know, equal representation to Black people and people of color, which was the largely the population of D.C. at the time and continues to be true to this day.

So, to give statehood to D.C. would be a huge win for D.C. residents, but it'd be a huge win for everybody who wants to, you know, solve climate change or get health care or, you know, have a better Supreme Court. Because D.C. right now doesn't have a say in any of that because the Senate is designed to give a lot of power to a very small group of people and to deny power to us. So, that starts to sort of balance out the numbers problem in the Senate.

HAYES: You know, Jon, I think that -- you know, first of all 100 is a nice round number in terms of the U.S. Senate, which I think is always ends up working on people in D.C. more than it should. But there's a sense that like that, you know, adding states, you can't do that. But of course, we've done it a ton. And every time it's been partly a political process. Like, we've added seats for frankly political reasons.

JON MEACHAM, HISTORIAN: It's always been political. It's always been political and about power. In fact, this -- from the very beginning, in fact, it was the disputes over the powers of the states versus the central government in the Articles of Confederation that led to the Constitutional Convention.

And for what it's worth, James Madison had two ideas that would have been good. One was he wanted proportional representation in the Senate as well as the House and he lost that. He also wanted a federal veto over state laws, which was a non-starter, but an interesting nationalist view at that point.

The battles over the Civil War, the battles that led to the Civil War, obviously, were about statehood, and what would be allowed in those states. So, the various compromises that ultimately proved unsatisfactory, and led to the cataclysm of the war and blessedly to emancipation.

The last time we did this, it was kind of a Cold War experiment in the late 1950s with Alaska and Hawaii. Complicated stories, very political. Hawaii was seen as an attempt to bring as a state in that would be a different race, ethnicity, for those issues to kind of soften our image around the world because -- literally, because we were still under Jim Crow, we were still a segregated country. And part of the thinking was, hey, we're not racist. Look, we just let a state in.


MEACHAM: And so, that's an important part of that political dynamic. And Alaska is a state, not least, because of its geographic strategic importance in the Cold War. So, we've done lots of things involving -- admitting states for lots of different reasons.

HAYES: Yes, I think that's a great point about the sort of -- you know, the kind of pragmatic calculations of the time as the things out of which this sort of what we now think of as essential structures of the nation are made, right? Like, you're not going to go back, right, and laugh off Alaska, or get rid of Hawaii.

But of course, there was just some decision at some point that, you know, these people should be part of the Union. And I think part of the problem too, Meagan, is that, you know, we're seeing this kind of structural problem grow up. You know, people talk about the Electoral College where there's a 4.5 point swing between what Joe Biden won the popular vote and, you know, his Electoral College victory, which was by 40,000, 50,000 votes, that's even bigger than the Senate.

You know, calculations of the Democrats now have to win the Senate by seven points nationally. In a polarized country, that's very hard. You've got to lock in this kind of minority rule problem.

HATCHER-MAYS: Yes. I mean, it shouldn't be the case that, you know, one party wins tens of millions more votes in the presidential election or in the Senate elections overall. And like the best we can do is, at best, best-case scenario is a 50-50 split in the Senate. That speaks to a bad design.


HATCHER-MAYS: And the way that you sort of, like fix that problem is to, just like you said, bring in new states. And the fact that we're talking about bringing in states of people who are wholly disenfranchised just makes the cake a little bit sweeter. But I mean, this should not be the case. And I think, you know, Democrats really need to start thinking big about some of the various ways that we can start to address this problem, because it can't just be every two to four years that we have an election and we're scraping and, you know, tooth and nail for a majority of one in the Senate, even though we're -- you know, Democrats are very clearly, you know, the majority party.

HAYES: Well, they have -- I mean, that's the thing. There has been a durable national majority, somewhat improbably through seven of eight elections. And Jon, you know, the Hawaii experience, I think, matches probably the closest to what Puerto Rico would be, right? This is a place that was fundamentally colonized by the U.S. where the history of that colonization was quite ugly. That was the case in Hawaii. It has been the case often in Puerto Rico where there was resistance, I think, on the ground to even the giving up sort of self-determination sovereignty.

But there was just a vote in Puerto Rico. There does seem like there's some movement towards that. And it seems like that's the closest analog in terms of our history.

MEACHAM: There's a rich literature on this which goes to many of the essential questions about color and ethnicity and race that we continue to grapple with, which was -- and there are scholars who've argued that having people who were Asian immigrants, essentially not immigrants, but Asians -- of Asian descent to become part of the United States, that was a more virtuous and kind of immigrant, right, and Puerto Rico would not be.

And so, the role of race in this which fundamentally obviously is part of the current conversation, was a part of the conversation then the idea of Americanism and who were the desirable people.

HAYE: Right.

MEACHAM: And it's a very uncomfortable American conversation, but it's one -- it's one we've had -- it's one we need to continue to have. And the great thing about the constitution, as hard as it is to amend, it was built to amend.

HAYES: That's also true. Great discussion from both of you. Jon Meacham, Meagan Hatcher-Mays, I really enjoy that. Thank you both for that. I really appreciate it.

HATCHER-MAYS: Thank you.

HAYES: Still ahead, pushing to expand the Supreme Court. What it would take to add more justices and restructure the highest court in the land. We'll talk about that next.


HAYES: One of the most maddening, and to my mind, stupid as news cycles during the presidential campaign was the great court packing controversy. Will Joe Biden endorse expanding the Supreme Court to add more justices? The reason it was so dumb is that it was completely a science fiction question dependent on a whole bunch of things happening together like flipping the Senate first, and then also ending the filibuster. And we still don't know if those things will happen. Most likely they won't even though we can't get those two weeks or so of our lives back

And yet, there is a substantive issue about the legacy of this right-wing Supreme Court, the lower courts that have been packed by Donald Trump and Mitch McConnell. And that's why there is an urgent and concrete argument for Democrats now to think about how to restructure the judiciary.

Someone who radicalized over this issue is Brian Fallon, longtime Democratic operative, Hillary Clinton's former press secretary. Now, perhaps singularly focused on making the courts more progressive. He's the co-founder and executive director of Demand Justice, an organization that is devoted to doing just that.

Brian, first lay out for me, I guess, like the kind of blue sky -- do we have you hearing me?


HAYES: Oh, great. Layout for me just like -- let's get rid of institutional constraints or any sort of constraints. If you had a magic wand, right. Like, what would a plan for restructuring the judiciary or expanding it look like if you could do whatever you wanted to do?

FALLON: Well, I think you'd want to do two things, Chris. I think you'd want to first expand the size of the court by no fewer than four seats in order to undo the injustice that was done with the last two vacancies, or at least two out of the last three, yet unprecedented maneuvers by the Republicans to block any consideration of Barack Obama's nominee in 2016. That was unprecedented. And then just this year, you had another unprecedented move in terms of confirming a justice, rushing to do so right before an election, confirming somebody closer to an election than it's ever happened before in the nation's history.

And now Republicans say, hey, that's fair game. That's within the rules. That's not unconstitutional. To which I say fine, but neither is expanding the size of the Supreme Court. That's happened seven times in our history. During the 1860s, it happened three times in that decade alone, during a period where the nation was undergoing a big political shift. We were entertaining big questions of what it means to be a citizen, what is entailed by the right to vote, not unlike the debates we're having now.

And so I think that people need to be imaginative, open themselves up to this possibility. Adding to this size of the Supreme Court will restore balance. 6-3, the margin that we have in the court now, it's something that when you pull average people, they do think that sounds out of whack. So, we're starting to see support for this. This is pushing majority level support with the public.

The other thing I would add, Chris, is term limits. I think you can do both in combinations. We should bring a sense of regularity to when these vacancies arise on the Supreme Court. If you get elected as president to a four-year term, you should have some certainty that you're going to be able to appoint at least two justices in that four-year window.

Jimmy Carter won one term for President, didn't get to name anybody at the Supreme Court. Donald Trump won a similar four-year term, and he picked three justices. And that's how we end up with randomness of, you know, Democrats winning the popular vote and seven out of the last eight elections, and yet, Republicans picking 15 out of the last 19 supreme court justices.

So, I put everybody on an 18-year fixed term so that seats are expiring every two years, and expand the overall number to 13.

HAYES: That's -- I mean, that's --that latter point is such an important and good one. It is -- there is nothing like it in American politics, the McCobb death watch for Supreme Court justices. I mean, it's sick and bizarre. You know, everyone -- it's like buzzard circling overhead. There's just nothing like it.

It's a lifetime appointment, obviously. Justices can choose when they retire. But if they don't, as we saw with Ruth Bader Ginsburg who battled against various illnesses with incredible fortitude for so long, that's the situation you end up with just the spin of fates wheel. You're saying get rid of that. Have some regularity to it. I think it's a good idea.

FALLON: If you added to the number of seats on the court and in combination to that added fixed terms, the death or the retirement, the timing of a retirement would be less of a stop the presses triggering of an all-out war, because each individual seat is less high stakes if you have more than nine seats.

And if there's some rules set in so that every president is fixed in terms of the number that they can appoint in any four-year window, then it prevents the incentive for Mitch McConnell to try to keep a seat open to create an extra seat for the next president to fill. It would restore sanity to the process. It would truly depoliticize things.

And people as -- you know, there's bipartisan support for this certain note. Nobody less than John Roberts himself when he was a Reagan Administration lawyer in the 1980s, penned a memo for the Reagan administration suggesting that there should be term limits for Supreme Court Justices.

So, this is an idea that has appeal. Term limits has 70 percent support with the public. I think there's going to be a more robust conversation here, not least because the Biden administration is committed to appointing a Court Reform Commission in 2021 that I think is going to look at both of these proposals and then some.

And so I think it's very important that that commission include voices like Eric Holder, Heather McGhee, the former head of Demos, Professor Michael Claremont of Harvard. These are all people that have been out there making the case for particular reforms. I think they would be valuable voices on that commission.

HAYES: Yes. And my understanding is there's some conservatives -- I believe Stephen Calabrese, who is a law professor and one of the co-founders of the Federal Society has written about term limits as well. I mean, the idea of regularizing -- I didn't say that right, but we'll keep moving -- of these terms such that everyone has a kind of democratic transparency going into election. I mean, that's part of what's so crazy, right?

You then know, OK, well, we're voting for a person who's going to appoint X many seats, as opposed to a veil of ignorance and, you know, depending on the luck. And there's no like -- there's no conservative or liberal valence to that question. That's just a question about us as democratic citizens knowing what we're getting.

FALLON: Right. And I think that we should also approach this with a goal in mind of trying to undo vestiges of our system that lend themselves to minority rule. The Supreme Court as it's set up now is really the outcome -- the 6-3 majority that we have on the court now is really the outcome of sort of two counter-majoritarian factors that have compounded into this 6-3 court which is woefully out of step with the public on everything from health care, to gun safety, to climate change.

And that's because you Have in Donald Trump somebody that lost the popular vote by almost three million votes, who made three selections to the Supreme Court that were confirmed by Senate Republican majorities that represent, you know, less than a majority of the public in the country. And I think that all these proposals go together, the idea of rethinking the Electoral College, eliminating the filibuster in the Senate and states so that we increase the size of that chamber and reforming the Supreme Court.

HAYES: Democracy is the North Star here. Brian Fallon, thanks so much for making time tonight.

Ahead, how can Joe Biden break through the wall of bad-faith opposition that would certainly greet him when he takes office? How about trying to do everything all at once on day one? The Biden Blitz theory of getting things done coming up.


HAYES: I think it's pretty painfully obvious to all of us at this point that American politics are pretty divided. There's historical evidence that suggests we're as polarized and the parties are as competitive with each other as we've been in over 100 years. And there's two ways to think about what to do with that state of affairs.

One way which I think Joe Biden and many in the Democratic establishment are sympathetic to is look, if the country's divided, you got to be close to the middle. If you try to do too much, if you go too far, if you're too extreme or too energetic or too oppositional or too ambitious, you're going to be punished because the middle of the country is where the politics are happening in a divided nation.

But there's another way of thinking about the structural polarization and what it means incentive wise. It's something and I think Donald Trump and his own feral way figured out. If the country is divided, if you're polarized, well then if you do a ton of stuff, if you try and fail if you are bold and ambitious, if you try to remake the government and materially improve people's lives and do everything that you possibly can, even if slightly half the country doesn't like it, slightly half the country's going to be with you, and maybe you face no punishment politically for whatsoever.

Maybe the fact of polarization means instead of being careful and small and compromising the middle, maybe the fact of polarization means you just do what you think is best and let the chips fall where they may. The Case for Biden Blitz ahead.


HAYES: Joe Biden takes the oath of office at noon on January 20th. He will, of course, take over a deeply divided country facing immense challenges that have only grown worse over the past four years and particularly over this past year. Some of those challenges will take significant time and effort to tackle, but there's actually a lot that Biden can do starting on day one whether or not Republicans maintain control the Senate.

And the speed at which he acts will matter too. Writer David Roberts of Vox says the way for Biden to succeed in this hyper-polarized environment is to run a blitz, where he does everything at once. Because the only thing Biden will have real control over his administration and what it does and his North Star, his organizing principle, should be doing as much good on as many fronts as fast as possible.

This is one area where Biden can actually learn from Trump's example, Robert says, by constantly acting being on the offensive, generating news stories and controversies. Trump simply overwhelmed the ability of the system fastened on any one thing.

The idea is to take on everything quickly and boldly knowing some of it won't work. It will take hits, you'll get backlash, but at the end of the day, all that matters is what gets done, put on paper and into law. The rest is vapor.

I'm joined now by the author of that piece, David Roberts, who writes about energy and climate change for Vox. David, I really liked the piece and it made me think a lot. Layout the sort of theory of the blitz as you understand it.

DAVID ROBERTS, WRITER, VOX: Sure. The idea is that, you know, I sort of set it up in contrast to Obama's administration who had this idea that he had a certain amount of political capital and he could elicit cooperation from Republicans by sort of moving slowly and deliberately doing one thing at a time, taking plenty of time to negotiate, basically offering good faith attempts at cooperation.

And what happened was, he just got rope-a-doped again and again, and it became clear, I think it's especially clear now in retrospect, that there was never any intent to help him. It was all -- it was all intended to waste time because Mitch McConnell has recognized accurately I think that in hyperpolarized two party politics, it really is a zero sum game in anything -- any victory that a Democratic president gets, hurts Republicans.

So, Biden should assume that up front, I think. And if -- and if we, you know, if we needed any more proof of what the right is now, I think the Trump years have cleared that up. And he should just take that on board and realize he's not going to get help. He's going to be confined to what he can do on his own, and he should just do it.

HAYES: Now, part of that -- I mean, d it is a little complicated, right? Because if there's -- even if there's a 50-50 Senate which Democrats control, you know, nominally but they can't lose a single vote, or if Mitch McConnell control the Senate. Like, they can't just like, ram through legislation, right. So, what does -- what does that mean in sort of real terms with the legislative bottlenecks there might be?

ROBERTS: Honestly, my assumption has been that Democrats are unlikely to win these to Georgia run offs. And thus, Mitch McConnell is likely to be the majority leader. And thus, that legislation is more or less off the table. I mean, that's my assumption, other than sort of these emergency spending bills that have to go through to keep the government running.

But you're seeing now like they're already gearing up to worry about the deficit. They're already gearing up for opposition. So, I think Joe Biden should already be thinking, what is the maximum freedom of motion I have? What is the maximum I can do without Congress, without legislation? And it turns out there is a lot.

The presidency is extremely powerful, but I think in the past, like Obama was leery about using that power too much, at least early in his administration, because he didn't want to flip out the right. He didn't want to sort of lose this cooperation he thought he might get. But if Joe Biden is clear-eyed about the fact that he's not going to get it period, he can just start pulling those administrative levers the second he walks in the door.

HAYES: And that's -- and that's a really interesting idea, right? Because if you think -- I mean, I think what Obama thought was there was a possibility of consensus. He also was waiting on that 60 of both in the Senate. He wanted to do these big legislative things, so it was -- it was a calculation. If you go in thinking like I'm not getting it -- I mean, particularly if you don't win the runoffs, right, I'm not getting anything out of a McConnell Senate, other than maybe avoiding shutdowns, maybe.

ROBERTS: Yes, that's not certain.

HAYES: You know, there was -- I think there -- one of the things that's interesting in your piece, I think there was an idea in -- there has been an idea, and I think Joe Biden might have this idea, because he served in the Senate for so long, that if you take these administrative actions that are provocative, like you, poison the well for whatever bipartisan comedy there might be. And your argument is like, there's none to be had so you might as well do it.

ROBERTS: The well is full of poison. I mean, what more -- what more proof do we need? I mean, how -- like, what do we need to see the last 10 years have been, 100 percent consistent on the right, they have not deviated from the course of action for 10 years now. The only doubt that's ever been raised about what they're going to do next is from Democrats who seem endlessly credulous about the next promise of cooperation.

So, the well is poison. That means what matters is the power you have, and what you can do with it. And that should be Biden's overwhelming focus.

HAYES: And the other -- so the other thing that's really interesting is this idea of pacing, right. Like there -- and this, I think, is a real interesting lesson of Trump because there's obviously a lot of things he did horribly, terribly, like govern. But certainly of hacking the news cycle, because I think that one of the things that that I've seen among Democratic politicians, this was true of Obama, was like, they didn't want to make news.

Because if you're making news, then you've got controversy. And if you got controversy, then you're adding political capital, you're getting questions about it. And one of the ways that Trump hack that was to make so much news. And you -- and you sort of think that can be a model. Like, if you do a lot of stuff, everyone's always chasing the last thing you did.

ROBERTS: Right. Right. And if you try not to make news, the sort of perverse outcome is you get the media really wanting to make news, right? They end up chasing every little thing. So, if you were, say, a tan suit and there's a Republican willing to accuse you of treason for it, that'll be a two or three-day story because there's nothing else.

But what Trump did is just make news every five minutes. So, you know, one scandal after another pass just because everybody was still busy sort of harrumphing and trying to like understand it by the time the next one arrived, and so no one could make a real story out of any one of these things.

And what I thought might be nice to try for once for Biden is to just do good things at the same pace so that -- so that, you know, the inevitable sort of like, Republicans are going to howl about this. There's going to be pundits in D.C. who scratch their chin and worry that he's not being -- you know, he's not reaching out enough and there's going to be all the usual, you know, chatter in D.C. But he can just ignore that stuff.

And by the time a narrative settles or sort of congeals, he's on to the next thing doing something else. So, you know, let's try to like use the news cycle the way Trump used it, you know, for the forces of good, I guess, is my idea.

HAYES: It's a really, really good idea I think. I really enjoyed the piece. You can read it at or David Roberts (INAUDIBLE). David, thank you so much.

ROBERTS: Thanks, Chris.

HAYES: That is ALL IN for this evening. Good night.


Content and programming copyright 2020 MSNBC. ALL RIGHTS RESERVED. Copyright 2020 ASC Services II Media, LLC. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of ASC Services II Media, LLC. You may not alter or remove any trademark, copyright or other notice from copies of the content.