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Transcript: All In with Chris Hayes, September 18, 2020

Guests: Melissa Murray, Chris Lu, Mazie Hirono, Cory Booker, Rebecca Traister, Vanita Gupta


Supreme Court Justice Ruth Bader Ginsburg has died at the age of 87 due to complications of cancer. Interview with Sen. Mazie Hirono (D-HI) and Sen. Cory Booker (D-NJ) on Justice Ginsburg's passing.


JOY REID, MSNBC HOST: Thank you to all my guests. Thank you so much, John Meacham. I always appreciate your voice. Thank you to all my guests on a sad night. Justice Ruth Bader Ginsburg has died at the age of 87. MSNBC will have continuing coverage all night long. "ALL IN WITH CHRIS HAYES" starts now.

CHRIS HAYES, MSNBC HOST: Good evening from New York. I'm Chris Hayes. Some stunning and sad, desperately sad news tonight. Supreme Court Justice Ruth Bader Ginsburg has died. The Supreme Court announcing just a short while ago that she passed at the age of 87 due to complications of cancer.

Her health, of course, had been tenuous for years, but she displayed this almost incomprehensible resilience. She survived cancer multiple times, going through multiple rounds of chemotherapy, and still doing her job in the court. Her workout routines were legendary as she beat back cancer time and time and again.

Ruth Bader Ginsburg was one of the greatest lawyers of her generation, an absolute trailblazer for women's equality and women's rights before the law at every turn in her career. She argued six cases before the Supreme Court. She worked for the American Civil Liberties Union suing states to invalidate laws that discriminate on the basis of gender and by so doing built up a body of case law that would completely alter the way the constitution interacted with gender and protections for women and men in some places in the workplace.

She was nominated to the Supreme Court by President Bill Clinton back there in 1993. You see her there. She was absolutely beloved by her law clerks, by the people that work for her. She had a deep and abiding friendship with Antonin Scalia, her ideological opposite of the court who of course passed away in 2016.

She'd been lauded for opinions in cases like United States v. Virginia, where women were given the right to attend the all-male Virginia Military Institute, and her dissent in the employment discrimination case Ledbetter v. Goodyear. And concern about her health has, of course, lingered. It has stocked everyone who works in Democratic politics, particularly in liberal jurisprudence, many wondering what would happen, what would happen should Ruth Bader Ginsburg succumb to illness. And now, we're there with 46 days to go before the election.

Now, of course, you will remember that the last time a vacancy came up abruptly in an election year due to a death on the court, Antonin Scalia in 2016, Mitch McConnell, of course, within hours of Scalia's death, very famously announced that they would be not entertaining any nominations from the Democratic president, none whatsoever. That the Senate should not -- would not even have a hearing on the duly elected president's nominee. There would be no advise and consent because there would be no consent. And so, Merrick Garland, who of course, was appointed, was stonewalled in an unprecedented move, never been seen before. And of course, when Donald Trump won, he replaced him with Neil Gorsuch.

We know Mitch McConnell will almost certainly not adhere to that rule now. He is after all, Mitch McConnell. In the days leading up to her death, of course, Ruth Bader Ginsburg was thinking a lot about this. Apparently, not surprisingly, she understood what was going on. She dictated this statement to her granddaughter. "My most fervent wish is that I will not be replaced until a new president is installed."

For more, I want to bring in NBC News Justice Correspondent Pete Williams. Pete, it's great to have you. What do we know?

PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT: Well, what we know is that she died today at her home in Washington. The Supreme Court is saying that it was pancreatic cancer, which is what everyone feared with her. You know, she had four different kinds of cancer, four different battles with cancer, including colon cancer and lung cancer. But it was clearly the pancreatic cancer, which has a very bad survival rate, that was the most concern.

And tonight, the Supreme Court said that she died of metastatic pancreatic cancer. The Chief Justice, John Roberts, has put out a statement he says, "Our nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice."

But I think the question you raised -- I mean, we have to look backwards, and we have to look forward tonight. We look backwards at her astonishing career. A woman who started out after law school unable to get a job anywhere because law firms wouldn't hire her, to becoming perhaps arguably the most powerful lawyer, the most powerful judge in the country, certainly, the leader of the court's liberal wing and the person who has signed the opinions when she was in the majority.

But we also have to look forward to the point that you just made. I think there's a little doubt that the President -- clearly, they've been prepared for this at the White House. They've been thinking about people, because of the health concerns about Justice Ginsburg. For the last several months, they've been thinking about having to have somebody ready to go. So, I assume the President will move relatively quickly.

And as you just said, Mitch McConnell has said that he's determined to do this. Never mind the problem that happened with Merrick Garland after Justice Scalia died, who could never even get a hearing. And the question is, I think the questions are twofold. You know, can the Republicans do this with the schedule that we face with elections coming up?

But secondly, even if they can, do they have the votes? Remember how close it was for Brett Kavanaugh. And I think you have to ask yourself, would Lisa Murkowski of Alaska, would Susan Collins of Maine, would some of those Republicans who are on the edge vote for really, it doesn't really matter, anyone that the President nominates at this point, given that we're, you know, the President's first term has almost come to an end, and we don't know what the outcome of the election would be. So, I think that's a fair question that we have to ask.

The other thing is, is this a practical matter. The Supreme Court's new term will start in just a matter of two weeks. The first Monday of October is the traditional time. And so, what it means is we're going to have a Supreme Court that will have an even number of justices. And the last time that happened when Justice Scalia died, you know, the court kind of scales itself back. When you face the possibility of these tie votes, you know, you don't -- it's harder to transact a lot of business.

On the other hand, it leaves the conservatives now with a determined majority on the court. Even though it's just eight justices. They're really only now just three liberals and three dependable liberal votes, I guess you could say. So, you know, it's going to -- it's going to make this new term starting off in a very strange way.

And remember, we have some big cases, including the future of ObamaCare, a case that will be argued just the week after the presidential election.

HAYES: We should also note, of course, that, you know, as we saw in 2000, when famously Bush v. Gore went up to the Supreme Court, and that was decided by a razor-thin five-four majority with Ruth Bader Ginsburg in that dissent, in the -- in that decision. That protracted election litigation could very likely ended up at an eight-person Supreme Court if that's what it is, if that seed has not been filled, which would -- which would create a situation in which a tie would, if I'm understanding this correctly, uphold lower court decisions. But that would be an entirely novel set of circumstances.

WILLIAMS: Yes. As a -- as a technical matter, a tie doesn't uphold anything. It's just as though the case was never argued. But the lower court, whatever the lower court decision remains yet prevails. So that's right. That's another -- that's another thing to have to worry about in this -- in this coming very strange term.

HAYES: One more thing that it seems sort of necessary to point out here just because of her life and legacy is that Ruth Bader Ginsburg was a -- was a very committed both before and after being on the court, a champion of abortion rights in her -- in her jurisprudence on the court and in her life as a litigant that advocate before then.

You know, I think it's fair to say that there's never been a kind of confirmation battle or opening that will so squarely put Roe v. Wade and abortion rights in the crosshairs or spotlight as a kind of national referendum as this one, particularly because Justice Roberts did side with the liberals in the one big abortion case, in this past term, striking down a Louisiana law very similar to a law that had been struck down by Texas.

So, you now have a situation where it's just inescapably, it's always the subtext and sometimes the text of these battles but inescapably so it would seem to me in this situation.

WILLIAMS: Well, if President Trump, in fact, is able to put her replacement on the court, it'll be the biggest change in the Supreme Court's lineup in decades. Certainly, much bigger than Justice Kavanaugh's replacement of Justice Kennedy, because remember that Justice Kennedy voted with the conservatives often as -- as often as he voted with the liberals, bigger than the replacement of Sandra Day O'Connor by Samuel Alito which move the court to the right.

But if Donald Trump is able to put Ruth Bader Ginsburg's replacement on the Supreme Court, then that really moves the Supreme Court decidedly to the right for decades to come. That would be a huge -- a huge change in the Supreme Court's jurisprudence.

HAYES: Pete Williams, thank you so much for joining us at the last minute here tonight with this very sad and monumental news. I really appreciate you coming on. Thank you.

WILLIAMS: Of course.

HAYES: For more perspective, I want to turn to Neal Katyal, former acting Solicitor General and someone who has argued before the court as oral advocate there many times, argued before Ruth Bader Ginsburg. Your thoughts on her passing.

NEAL KATYAL, MSNBC LEGAL ANALYST: I'm heartbroken. I argued 41 cases in front of her. When we were outside of the court, her husband was a friend of mine at Georgetown, and just the loveliest people and a great jurist, and a true American hero. And, you know, like this is someone who never missed a day of court until 2018, several rounds of cancer and chemo and the like.

I was in the courtroom the day after her husband Marty passed away. She was there delivering an opinion. Even you know, I've just recently been arguing in front of her when she has been going through intense chemo and the like, doesn't miss a beat. I mean, you know, always really sharp questions, asked usually the first question of anyone, and usually that question would get to the heart of the thing.

So, this is not just someone who was, you know, has -- leaves a legacy and all sorts of ways on equality and other things, she was just darn smart, you know, just analytic power was off the charts. And we lost today the best of America. And, you know, there is no replacement for justice Ruth Bader Ginsburg.

HAYES: I want to circle back to something you said because her husband, Marty, who's a tax law professor and a cherished partner for years, they had a truly incredible relationship. It's just an -- it's a wonderful part of the story of Ruth Bader Ginsburg who, of course, was this remarkable trailblazer in an incredibly male-dominated profession, knocking down barriers against women in that profession time after time, and had this relationship with the husband who was so evidentially gleeful and supportive of this sort of lifelong career-long battle that she waged against those barriers.

KATYAL: Yes. I mean, we could learn so much from the way she lived her life. I mean, also her friendships with people across the aisle, which maybe we'll talk about in a minute. But, you know, she was a Trailblazers. This is the person who was the first woman member of the Harvard Law Review, and she had a child at the time.

She was the first person to be hired with tenure at Columbia Law School. She writes the first case book on women's equality. She brings six landmark cases to the Supreme Court on women's equality. You know, she's the second female justice ever in our nation's history and the first female Jewish justice ever.

So, she did all those things. And part of that was possible because she had a husband, Marty, who reveled in helping his wife and, you know, learn to cook because she didn't want to do that. And she did more time to write than things like that. And what a lovely model for a future to think about and reflect on that.

HAYES: I want to bring into this conversation, Melissa Murray. She's a professor at New York University, former clerk to Justice Sonia Sotomayor when she was a judge in the Second Circuit, and co-host of the podcast Strict Scrutiny, which is about the court and lives and breathes and analyzes the court.

This is a shoe that everyone knew would drop eventually but there is something that takes your breath away about seeing the news, hearing this.

MELISSA MURRAY, PROFESSOR, NEW YORK UNIVERSITY: This is a devastating and in calculable loss. Justice Ginsburg was not just a hero to so many young lawyers and so many women across the world -- across the world and in the United States, but she was also the glue that was really holding together the court's fragile liberal wing. And obviously her death at this particular time, makes that particular position especially precarious at the court.

The court is going into an incredibly fraught new term. There is an election looming, and the vacancy on the court that Justice Ginsburg's passing presents is obviously something that's going to be much talked about as we go into November.

HAYES: What was -- Melissa, how would you describe -- I mean, I thinking about she's an incredibly rarefied air, you know, one sort of analog is Thurgood Marshall's career where he was this incredible civil rights lawyer and advocate who won these landmark cases and then ended up being on the court.

Ruth Bader Ginsburg had a somewhat similar trajectory. There's not a lot of people in that category, right? People that that go from being these sort of zealous rights advocates before the court to actually becoming a Supreme Court justice. She's in a very small category.

MURRAY: And smaller still, I mean, some have argued that the fact of zealous advocacy on any particular position would almost do one's prospects to report today. So yes, she and Thurgood Marshall were very much in the same company. She was known as the Thurgood Marshall of women's rights. And she really pioneered an entire approach to sex equality that basically wrote women into the Constitution. I'm in substance as well as in spirit.

HAYES: I want to talk a little bit about where we are right now and what it -- what it means for the court, Melissa, and I'll just -- I'll go to you and then to you, Neal. I mean, I just said this to Pete Williams. There are a million different ramifications here from election litigation to gaming out a set of political judgments that Mitch McConnell is right now making, huddling with people about what his best political play is here.

But it seems to me that Roe, and the fate of Roe, and the have legal eyes -- legal abortion rights in this country has never been hanging by a slimmer thread than it is at this moment as I speak to you, Melissa. Is that a fair characterization?

MURRAY: I think it's incredibly fair. There's a lot of talk this summer when the June Medical Services opinion came down that it was a huge win for abortion rights and for the liberal cause. And I was one of the few people, mostly women, who were saying, this was not a big win at all, but rather a kind of Trojan horse by which Roe had been narrowly upheld, but had really the substance of abortion rights have been gutted in profound ways.

And I think we're going to see going forward if the president is allowed to pick Justice Ginsburg's replacement, we will not have a five to four precarious majority, we will have a more solidified six to three majority. And I think the Chief Justice who has been more of an institutionalist on the court may feel more emboldened to join the conservative wing in striking down some of these more controversial opinions, or at least the ones that are against this sort of the right-wing ideology.

HAYES: Neal, what do you think about the abortion jurisprudence and generally what it -- what it means for the direction of the court?

KATYAL: Yes. I think with respect of abortion, it has been hailed by a thread. I did a, you know, as an audio track about this back in March and read all the cases and became increasingly deeply concerned. I think Melissa is 100 percent right about that. And more generally, yes, I mean, there are nine seats on the court. Up until today, we had five justices nominated by Republican presidents, four by Democratic presidents. That doesn't always tell you everything. You have any number of important times in which you know, a justice doesn't vote the way their supposed to political party would say.

You know, most famously, just this year, Justice Kavanaugh and Gorsuch voting against President Trump on the tax returns case, so it happens. But there is also something of a -- of a voting pattern here, a voting pattern, you know, in which certain justices tend to vote together a lot. And to lose Justice Ginsburg, I think, really does change that for voting rights and for the gender equality and race equality and, you know, any number of other things.

And so, you know, I think folks should be concerned about what this means for the future of the court, absolutely. I mean, Justice Ginsburg was a critical, important voice.

HAYES: There's also, Melissa, of course, the fact that the country is in the midst of this just ongoing catastrophe. We have lost 200,000 of our fellow Americans. We're in the midst of a pandemic. The President is actively seeking to undermine the legitimacy of elections. And I mean, all of us have been very focused on the role the courts will play as essentially the referee, as an arbiter of ultimate electoral legitimacy.

I mean, that was one of the first thoughts I saw when I saw the news, right, because there's this sense in which the President has been very clear. Like, he is going -- he has a plan in place to attack the legitimacy of the election, particularly -- should Joe Biden win, and the courts will be people that -- the courts will enter into that fray at some point to render some verdicts. And there seems like big -- there could be big effects here as well.

MURRAY: Surely. This will be an enormous term for the court, not simply in what's already on the docket, but what may yet come before the court if there's is a contested election and all signs point to it will be contested. But that's sort of the beauty of Justice Ginsburg jurisprudence, and she was a member of the court, but she didn't believe that the court alone could protect our civil liberties.

And she was one of the people who really believed in speaking not just to her other colleagues, but outside of the court itself. So, I'm thinking of her dissent in the Ledbetter case, where she warned Congress that the court was not going to be able to think about the question of women's fair pay without more Congressional action on the issue. And she entreated them to actually take affirmative steps to do so.

And indeed, the Lilly Ledbetter Fair Pay Act was the first law that brought Obama signed into law as president. She was always talking about that. And indeed in the last statement that was made to the court before the summer recess ended when her health concerns were announced, she basically said that she was hanging on, which I took to mean that she was cautioning all of us that this election was going to be one of the most important of our lifetimes, if for no other reason that we would be selecting her successor. And she wanted us to get out there and make our voices heard. So, I think she's very loud and clear on this.

HAYES: Yes, particularly the final statement of her life, it appears, dictated to her granddaughter. Neal Katyal and Melissa Murray, thank you so much for joining us on a short notice on this very sad occasion. I really, really do appreciate you guys joining us.

I want to bring in my MSNBC colleague, Andrea Mitchell, the host of "ANDREA MITCHELL REPORTS" and Chris Lu who served the Obama administration for many years of it through a variety of confirmation battles. He's now a senior fellow at the University of Virginia's Miller Center.

Andrea, let me just start with you. She was a legend. She's a genuinely legendary figure in the law in American history,

ANDREA MITCHELL, MSNBC HOST: Indeed. I, of course, knew her that way. I also knew her personally. I knew her husband Marty. Justice Ginsburg married me and my husband back in 1997. She was very important figure in my life. I recall after Marty died about two weeks later, I was at a dinner with her and Aspen at the Aspen Ideas Festival, and it was an honor of Justice O'Connor's 80th birthday.

And she got up and gave such an extraordinary tribute to Sandra Day O'Connor, and she told a story about how when she was first placed on the court, she was the second woman of course, and she was assigned to write a majority opinion by the Chief and she was frightened. This woman who had done so much had been so extraordinary as a judge and also, of course, in her private legal work and always first in her class and struggling against all of the discrimination against women, but she was so nervous about writing that opinion.

And she said, I could never have gotten through it. And then she did a perfect imitation at this private dinner, this birthday party of Sandra Day O'Connor, who had a sort of high pitched voice and she said, Justice O'Connor said, just put one foot in front of the other, just do it. You've got to do it. And she then talked about the sisterhood between the two of them.

And they couldn't have been from more distant lives. You know, this Jewish woman, you know, from New York, and of course, Sandra Day O'Connor raised in Arizona, on the ranch and going to Stanford, and also facing similar discrimination. She could not get a job also when she got out of law school, as Ruth Bader Ginsburg couldn't.

And she told this wonderful story about what the embrace of Justice O'Connor stiffening her spine and getting her through that first majority opinion when the chief -- of course, Justice Rehnquist assigned it to her, and how scared she was. But she became so confident and so strong. And yes, popular figure. You know, I've got a bubblehead doll that someone sent me.

You know, we all have our stories about Ruth Bader Ginsburg, but her love of music, many occasions in Washington when we would sit and talk. And I can't say I was the closest to her, but I certainly knew her well and knew her through her love of opera, and her friendship with Justice Scalia, and her, of course, deep friendship with Steve Brier. And I know this is a horrible loss for all of those who loved her so dearly and honored her and respected her.

HAYES: You made that point about her sort of pop cultural meme status, which, you know, sort of exploded in the last five or six years. Irin Carmon, a former colleague here and friend who co-wrote this great biographer -- biography of her. And what I heard from people is that like she really was into that. She liked -- she liked the icon status.

MITCHELL: She did.

HAYES: She enjoyed being a kind of pop-cultural icon.

MITCHELL: She had great, great sense of humor about it, The Notorious RBG. And I mean, she let herself be videotaped during her workout. You know, she enjoyed it, because I think she felt it was kind of amusing and reinforcing for other women -- other women that she was such a role model for and also as a cancer survivor, I can tell you. Her ability to work through the treatments and the pain and multiple cancers was just extraordinary.

HAYES: Andrea Mitchell, I know you've got a lot of work to do, and you were kind enough to make a little time to share your recollections tonight. Thank you so much for that. Thank you for joining us.

MITCHELL: You bet.

HAYES: I really want to thank you for that. Chris, I want to turn to you now for some of the sort of more practical considerations now. We're sort of -- I'm trying to kind of juggle on this evening, two things, which is a sort of encomium to the life and career of Ruth Bader Ginsburg who was truly legendary and left an incredible stamp. And then there is, of course, the inevitable question of what comes next.

And now, and as someone who served the Obama White House through different conformation battles, what is your anticipation now of what this means and what comes next?

CHIS LU, FORMER SECRETARY OF LABOR, UNITED STATES DEPUTY: Chris, you know, I had the chance to serve during -- the two confirmation during the Obama administration, and then also was Senator Obama when he voted on the Alito and Roberts nominations. And even in the best of times, these are very complicated. These are very heated. Obviously, we've seen this taken to a whole new level with the Kavanaugh nomination.

You know, I think, look, if anyone is counting on President Trump or Mitch McConnell to do the decent thing, and to follow the precedent that they set, or they claim to set back in 2016 with Justice Scalia, you would be sadly mistaken.

That being said, the Senate is still ostensibly an independent body. We have I think a statement already from The Senator Murkowski from Alaska saying that she will not vote to confirm somebody until after the election. There's still a couple of other moderates sort of institutionalist folks that are retiring like Lamar Alexander, perhaps Chuck Grassley, Mitt Romney. But it will be interesting to see because we have moved to very polarized times.

But even if this nomination battle can be pushed off, pull off to Election Day, it's hard to see that it does not get filled during the lame duck, and that's just a much broader period of time. And as you pointed out, that lame-duck period could be one in which there are is a contested election that needs to go to the Supreme Court, leaving aside all of the other cases that are on the court's docket right now, including the fate of ACA.

So look, I say to people, let us honor the remarkable legacy of Justice Ginsburg, let us think about her family, but let us recommit to doing what she would want us to do which is to get out and mobilize and vote.

HAYES: Well, one thing I would say here, and I've now covered a number of confirmation battles and covered the ACA big legislative fight, is that you know, nothing is done is until it's done. People should not preemptively conclude what will happen. It is just not clear. These are unprecedented times and wildly unprecedent circumstances.

People should not assume that Mitch McConnell, for instance, can hold the caucus for a confirmation vote in the next 45 days. I'm not sure he can do that. I'm not even sure that's politically preferable, given that maybe dangling this for the lame duck is kind of a useful tool for them. So, nothing is done is until it's done. You know, there's a lot of people who thought the ACA was going to be repealed in the first 50 days of Trump ministration, and here we are.

LU: Yes, Chris. I think that's a really good point. I mean, right now, Senate Republicans are on the verge of losing the majority. If you're a Mitch McConnell, I don't know that you want to put this political baggage on a Susan Collins at this period of time or a Cory Gardner. That being said, you know, look, the Monday morning quarterbacking from 2018 is that having a pitch battle over Kavanaugh may have actually helped mobilize some conservatives. That being said, it would just as easily motivated a lot of progressives to come out as well.

And so, look, you could see the president putting out a nominee. Mitch McConnell putting this off until after Election Day, and then just making this election simply about the future of the Supreme Court and increasing further the stakes on an election that already has the highest stakes.

HAYES: We should note also here that -- just in case folks don't know, that there are, of course, there are five justices on the Supreme Court, who are appointed by Republican President. There were until a few hours ago four appointed by Democratic presidents Ruth Bader Ginsburg being the fourth of those, and there are now three.

Chris Lu, thank you so much for being with me tonight.

LU: Thank you.

HAYES: Now, I want to bring in Senator Mazie Hirono. She's a Democrat of Hawaii. And she sits on the Senate Judiciary Committee, of course, which is the committee that evaluates judicial nominees. First, your thoughts about the passing of Ruth Bader Ginsburg tonight, Senator.

SEN. MAZIE HIRONO (D-HI): Well, first of all, we're in deep shock and sorrow. And she meant so much to millions -- to millions of people's lives. And I know what her last fervent wish was, that she should not be replaced until a new president is installed. And that is how we should honor the legacy of this totally remarkable, courageous jurist, and that is to honor her last words that she not be replaced until a new president is installed.

HAYES: I just want to note that the images we are showing there on your screen, of course, were outside the Supreme Court where as the news is filtered in, people have gathered to mourn and to grieve and to pay tribute to the remarkable life and career of Ruth Bader Ginsburg, who passed away today at the age of 87.

And Senator, that dying wish, I mean, literally the dying wish of the late justice, does that -- I'm not quite sure how to say this. Does that matter to your colleagues?

HIRONO: I think it mattered to my Republican friend and colleague, Lisa Murkowski, as she has already put out a message that to fill this vacancy now, and not wait until 2021 would be a double standard. Not that Mitch McConnell cares, but you know, I'm glad that Lisa Murkowski, who by the way, was the only Republican to vote against Kavanagh has put out that statement because in what we're calling for is fairness and decency. And there are only 46 days before the election.

Note, that the day that Justice Scalia died, that is when Mitch McConnell made the announcement that it would be appropriate for the voters to decide in the election, which was many, many months away. Scalia passed away in February. He makes an announcement in February. The election isn't until November.

So, the double standard that Lisa talks about is very much something that I hope, will move the Republicans but we shall see. In the meantime, I will look for every procedural tool that I can find, to make sure that this does not happen. We will do everything we can.

And this passing, Chris, reminds me of when I did have a chance to sit next to Justice Ginsburg at a dinner maybe about two years ago. And she talked about her concerns about the Supreme Court that there will be more five to four decisions. And that will not be good for the court because you want to have the Supreme Court have as United decisions as possible to lay the framework for other circuit courts and district courts to follow. She was very concerned.

And I shared that concern. So we talked about some of the major cases that have been decided in five to four decision, and she said, sadly, there will be more.

HAYES: When you talk about the Murkowski -- you're talking about any procedural -- I mean, I think, Lisa -- Senator Lisa Murkowski's statement is very important for what it signals, for putting it out immediately is quite important. You know, that is a signal to Mitch McConnell, as he's huddling right now figuring out the strategy.

But the point you said about sort of procedural obstacles, I mean, I am correct that -- doesn't a government funding bill have to be passed before the election. And there are talks about that right now. Like, there's not -- no leverage there.

HIRONO: There are probably a number of things that we should be considering, but, you know, we need to think about this. And that my goal is to prevent replacement before the new president is installed. We all loved and respected Bader Ginsburg so much that this is what we should do.

And if ever there was a time to do the right thing, this is it. And this justice, whoever will be replacing Justice Ginsburg, will be there for decades. The lasting legacy of the Trump presidency will be all of the ideological total right-wing judges that he has placed on our federal courts for life. And they will be making decisions on the ACA, on LGBTQ rights, worker rights, labor union rights, individual rights, and already the Supreme Court has shown that it is much more willing to protect corporate interests over individual rights.

And therefore, I will do everything I can to figure out how we can stop a replacement from happening. But believe me, Chris, what's going to happen is that there will be a lot more calls for Supreme Court reform if there is a replacement, but we're not there yet. Let's honor Ruth Bader Ginsburg, first and foremost.

HAYES: Well, one more question on -- and this relates to her legacy. As I said earlier, she was a very stalwart champion of abortion rights, both in her career before the court and on the court and her writings on the court. And of course, there was a decision, you know, June Medical, the Louisiana law that was struck down by the court. Justice Roberts joining the four liberals including Ruth Bader Ginsburg. How imperiled do you see that right now? How front of mind is that? How much is that, you know, something that the American people should understand as a sort of political consequence that Roe v. Wade, the law of the land for decades is under threat in a very real way?

HIRONO: It certainly is. And in Justice Kavanaugh, you have somebody who is overtly against abortion rights. He has made that very plain, even in the period of time that he's been on the Supreme Court. So, yes, a woman's right to choose is very much imperiled, as well as individual rights, worker's right, union rights, you name it. These are all imperiled if Trump gets to put -- force another person on the court that is ideologically driven.

And those are pretty much the only kind of judicial nominees that have come before our committee. And by the way, you know, we came back into session about a week ago, and pretty much all we've been doing is confirming more judges.

HAYES: Yes, it's all you do over there.

HIRONO: That's all we do.

HAYES: It's wild.

HIRONO: When literally the country needs support and help with millions of people out of work. And does Mitch McConnell feel a sense of urgency about that? Nope. He feels a sense of urgency to fill every single judicial vacancy. He has said so and he is living up to it. But I am hopeful that there will be other courageous. Lisa Murkowski is out there among the Republicans. Let's see if they have any guts to do the right thing. That is what I'm calling on them to do.

HAYES: Senator Mazie Hirono of the State of Hawaii, joined us on very short notice, and I thank you for that. Thank you so much for being with us, Senator.

HIRONO: Thank you.

HAYES: I want to bring in a colleague of Mazie Hirono on the Judiciary Committee as well, Senator Cory Booker, Democrat from New Jersey, who also serves on that -- on that key committee. A moment that many feared, inevitable at some point, of course, but your reaction to finding out the news today.

SEN. CORY BOOKER (D-NJ): You know, this has been a year of such grief and such profound death for America. 200,000 Americans almost, dead from Coronavirus, so many of us touched by that. Losing heroes, C.T. Vivian, John Lewis, and now a woman to what Thurgood Marshall was for civil rights. She was a champion and a true soldier for justice for women's rights in our country. And then on the court as a -- as a law student, as a lawyer, I mean, so many of the things that she did inspired.

And even when she was writing in the dissent, I still remembered her Shelby decision, this decision that gutted the Voting Rights Act that John Lewis fought so nobody for. She said, getting rid of the preclearance provision during a rainstorm is during -- right now, it's like getting rid of an umbrella during a rainstorm, because you don't think you -- you're getting wet anymore.

HAYES: Right.

BOOKER: She was just truly one of the giants of our nation and our nation's ideals. And this is just a deeply, deeply sad night. And I just grieve for not just her family, but I really do grieve for our nation and the loss that we see now in her.

HAYES: Yes, it really has been a freaking hard year for everyone, I think. And obviously, this is another thing to mourn and to grieve. What happens in your life on a night like tonight as a U.S. Senator? Like, is there a text chain of the judiciary committee, Dems, that you're talking about? Is there going to be a phone call tonight? Is there a strategy meeting? I mean, people need to grieve, but I just feel like Mitch McConnell is probably going to start the wheels in motion in one way or another.

BOOKER: Well, your phone explodes and call start coming in? And you are -- your heart is torn between just grieving and being in the moment and feeling the loss, and then also trying to think about the implications. And it's hard -- and it's hard not to. And if I could just show you all the unopened texts I have or I see the top lines of them of people who are fearful tonight about what might happen from the very legitimacy of the Supreme Court being undermined because you know, it's worth -- it's worth reading what Mitch McConnell's words were the American people have -- the American people, excuse me, should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president. That was -- that was Mitch McConnell.

Lindsey Graham, you know, to read from him. He says, and I quote, "If an opening comes in the last year of President Trump's term, and the primary process or process has started, we'll wait to the next election. And so, I don't know. I think your wise words earlier in your program were really right. None of us know what's going to happen. We know what should happen resolutely, unequivocally. We know that this seat should not be filled until after the next presidential inauguration.

But I think you've said it right where we just don't know and people who are trying to predict this. The question is really the levels of integrity of each and every senator, each and every Republican colleague of mine, who gives floor speech after floor speech to justify the blocking of Merrick Garland, the denying of Barack Obama of a choice, some -- more than 250 -- I think, between 250 to 300 days before the next election.

I heard their justifications on their floor. And so, this is going to be a big test of integrity. And I worry, because if it goes the wrong way, we will have a lot of challenges in our republic for the legitimacy of our institutions and people's faith in government leaders and government officials.

So tonight, I hope we all mourn. I hope we don't tread over this loss. I hope we don't just run by this greatness. I don't care what your political background is. This was a lifetime servant to the ideals of this country. And we should stay here for a moment and take our time to honor and respect and revere one -- a great American. And I know this will evolve in the days ahead but tonight, I know a lot of Americans' hearts are hurting.

HAYES: The Supreme Court has been -- it has been a struggle sometimes to get Democratic voters or some Democratic voters to focus on the courts. There's polling that indicates there's been an asymmetry, often in the prioritization. And you see it almost in a legislative sense in terms of Mitch McConnell. I mean, we say this all the time with you and your colleagues, that's all you guys do in the Senate. He doesn't do any legislating. He passes must-pass pending bills and confirmed judges. That's it.

What's the message to folks about the importance of this institution at this incredibly perilous moment?

BOOKER: Well, I've learned, Chris, that anger is a good emotion as long as it's not channeled into negative manifestations. I have a lot more anger these days, not for those Americans who support a different candidate than me, who are out there passionately working. My anger is for those people who don't understand what's at stake and want to sit on the sidelines this year on life and death issues. And I'm not being overly dramatic, life or death issues on the ballot.

Look what's happening right now with the Supreme Court case over the Affordable Care Act that expanded health care for millions of Americans. Look at the difference between Medicaid expansion in some states versus those not being expanded in other cases -- other places. From issues that you have shown some scholarship on like criminal justice, to drug pricing, to the environmental justice issues that are plaguing so many communities whose children are addled with lead.

This is a life or death election. There's so much on the line here. And so, I understand people that have different views in these four different candidates. I do not understand -- I do not understand how someone when so much is on the line for so many people could not be engaged in this -- in this race, could not get up and care enough about your country and your countrymen and women to vote.

And if there's any greater reminder now, we now possibly see the balance of the Supreme Court being held. So, if there's any election, for you to vote on, and to get up and do so, for your ancestors, for two generations yet unborn, is this election. And I'm sorry, it's going to take me a while to have patience with people that don't understand the urgency and don't participate.

HAYES: Let me just say this. That I think this is going to be a moment where there's going to be calls and expectations from people precisely because of the urgency you said to see Democrats do everything in their power, obviously, you know, within what you can do to stop filling a vacancy, right. There's -- you know, fortune favors the bold. And I think that thinking outside the box procedures and all those things, like whatever is -- whatever tool is at your disposal in the -- in the Democratic Senate leadership, people are going to mobilize to put pressure on you to use it.

And I'm sure you understand that now particularly having gone through that Kavanaugh confirmation that there's -- you know, people are looking for leadership too that is going to -- that is going to fight, that understands the dynamics of power here and the stakes of it.

BOOKER: Well, I understand the privilege that New Jersey's given me not only as the United States Senator, but to be on that Judiciary Committee. And I will -- I will stand up for what's right without any equivocation whatsoever, and as you already surmised, there are conversations already going on among judiciary committee members and senators and discussions about how to move forward.

Again, my prayer for my nation, not just for my own political perspective, my prayer for my nation for the sacrosanct institutions of which we speak, the Senate may have compromised its integrity over recent years, but the Supreme Court, if Mitch McConnell makes the wrong decision here, I just worry about the integrity and the legitimacy of the court.

HAYES: Senator Cory Booker of the great state of New Jersey, who sits on that Senate Judiciary Committee, which is going to be the focal point of much of the nation's politics already this evening. Thank you for making time tonight, Senator. I really do appreciate it.

BOOKER: Thank you.

HAYES: All right, this is fantastic. Joining me now, my good friend and someone who I want to speak to about this as much as anyone in the world right now, Rebecca Traister, also writer-at-large at New York Magazine. This is -- this is the nightmare scenario that has been dreading. You and I have discussed it for years and months, but it is now here. What are you thinking and feeling at this moment?

REBECCA TRAISTER, WRITER-AT-LARGE, NEW YORK MAGAZINE: I'm feeling a shocked. That is probably irrational because this was something that everybody knew was a possibility every day. You know, the timing of the news, it was very sudden. I didn't -- you know, there obviously been recent news that she was again ill with cancer and then she'd been out in public. And so yes, I feel surprised and horrified and chilled and I think everything that that millions of people are feeling, I'm very scared and I'm very sad.

HAYES: What do you see as the most sort of immediate pressing concerns politically? I mean, again, what Cory Booker said here, and what Mazie Hirono said, and what others have sort of juggling the sense mourning, and the -- and the urgency of the last words of Ruth Bader Ginsburg. She obviously understood this, and it loomed over her for the many years of her life in a ways that almost seems unfair and burdensome and prison like, right? Like, she knew this. She knew that when she was fighting cancer, she was fighting to both stay alive and to live out through the Trump administration, but the -- but the dynamics of this political moment.

TRAISTER: Yes. I mean, there is nothing that has happened not only over the past four years, but the years that preceded those. There is nothing about Mitch McConnell's Senate that would lead me to believe that there would be anything -- that anything would happen here except that they'd ram through the justice of their choice.

This is what the right-wing has wanted. This is what the right-wing has been planning for. The right-wing wants control of the court and it has gotten it in recent years. And Mitch McConnell was willing to do outrageous things and break every rule in order to maintain control of the court with a Democratic president, and he still has a Republican president.

And I don't -- you know, I just saw and I don't -- I just saw news that Lisa Murkowski has said that she would want to wait, but are we going to find enough people who are going to wait? I mean, Joni Ernst months ago was rather ghoulishly talking about how she didn't see any problem with voting through a justice even in a lame duck Senate, even if Donald Trump lost the presidency.

There was an interview, certainly within the past two months in which Joni Ernst said that. I don't see a scenario where, you know, sort of reason and protocols and norm suddenly take hold and we wait to see who the next president is and what the will of the American people is. I don't feel a lot of optimism on that front. I hope I'm wrong to not feel optimism.

HAYES: I want to put a -- read a statement that Chuck Schumer just tweeted out, in which he, I think just tweeted the words of -- I think that's exactly what Mitch McConnell said in 2016 after Scalia's death. "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president."

That is word for word, without quotation, and somewhat slyly Mitch McConnell's statement about Scalia's passing in 2016. I want to follow up on the -- on the politics of the Senate, but also just -- I mean, look, Ruth Bader Ginsburg was an -- was a feminist giant. This is a year of an era of sort of like reckoning around race and gender, particularly between MeToo and Black Lives Matter, not coincidentally with Donald Trump is president and the defeat of the first woman nominee. And like losing her at this point, a day after yet another woman came forward to say the President of the United States sexually assaulted her. What is the meaning of it to you? What does it -- what does it say about where we are?

TRAISTER: It's the world's most chilling and horrible poetry. I mean, this has been the project of the American right wing since the great social movements and political and legal shifts of the mid 20th century has been to reverse all that progress. And you know, the American right has been working on this for decades. It's not just during the Trump administration.

This has been a project for decades and it has already looked -- you've already had the Voting Rights Act gutted. You've had labor protections gutted. You've had environmental protections gutted. You have even decisions like June Medical Services which, you know, some people sort of read is a benign thing. The road to making abortion, everything but technically illegal is open and we're traveling down it already.

So the major legal victories of the mid-20th century, this has been the project of the Republicans. And yes, there is a horrifying poetry that this is happening. I mean, this was the first day of in-person voting in Virginia, right, for the election. And the day that we're voting perhaps for a Democratic president is the day that Ruth Bader Ginsburg dies. And that will -- if she is replaced, which I have every reason to believe she will be by Donald Trump and a Republican Senate, that will alter the course of the Supreme Court for generations.

I would like to think -- you know, earlier in this election season, when we were having fights about sort of liberal and left-wing policy reform, there was some talk about court reform. And that seems very unlikely to me that, you know, a Biden administration, which is not for big -- you know, crashing around and structural organization -- institutions would do that. But we are looking at within this past week, I think, the Senate confirmed -- it's not just Ginsburg seat, confirmed lifetime appointments. Trump has appointed a record number of lifetime judicial appointments.

The courts are stacked right now by Donald Trump and by Republicans. And I do think that one of the things we actually should -- I mean, I hope that there is a conversation about what there is that can be done about this, and the possibilities of court reform as much of a longshot as they may seem.

HAYES: Well, here's -- so here's the one -- the one thing that I think -- and I want to hear your response to this. The one thing that I think is important not to lose sight of is first, sort of for the people who are on the side against the kind of rollback, is that public opinion has moved in those people's favor. We've seen remarkable changes in public opinion on some of the things pertaining to race and policing. But centrally here, and I think it's just so important for people not to be scared of their own shadow, Roe v. Wade is popular. Overturning Roe v. Wade is incredibly unpopular. There are lots of subtleties to abortion polling, a huge amount depends on how you ask the question. But when you call the question that way, when you call the question centrally on Roe, when you say this is it, Roe or not, you get durable majorities who want to maintain it. Massive majorities.

TRAISTER: Massive. Actually like 60 to 70 percent majorities even in purple and some red states.

HAYES: And I think this is just massively important for everyone to understand as we think about it. Like, don't be scared of a frontal political fight on Roe v. Wade, when in a country that's polarized on everything, support for Roe v. Wade routinely comes in at 65 or 70 percent.

TRAISTER: So you raise a really interesting point. And that point is that this moment should not be a moment at which anybody thinks, OK, it's over. And that is an instinct, right? That's an instinct. I have had it within the past hour. One of the easiest things to think in this moment is well, that's it, it's done, right? It cannot be. It is only done if everybody says, well, it's done. There's nothing we can do. Because the fight that has to happen, and it has to happen from the Democratic Party, it has to happen within the Senate, it has to happen around public opinion. It has to happen around the expression of refusal to permit the systems to be perverted and corroded in the way that they have been that got us to this point.

Remember, that if Barack Obama had been able to appoint his justice, this would not mean the thing it does now, right? And that was a breaking of how this country works. And we have to fight harder against that. There has been a denialism including in the Democratic Party about how hard Republicans were willing to fight to get what they want it.

And those who are horrified and chilled to their bones tonight, in addition to being agonizingly sad and scared, need to remember that what got us to this moment was a right wing that was willing to fight as hard as hell over a period of decades. When everything seemed stacked against them, they fought and they got here where the death of one 87-year-old woman is -- you know, has the possibility of determining, you know, 50 years ahead of us.

And what those of us who are horrified in this moment have to be ready to do and willing to do is think about creative, energetic-driven ways to maintain the fight to keep this rollback from happening.

HAYES: So, I want to -- I want to just bring some news that we saw Chuck Schumer's statement. McConnell has a statement on the passing. I can't read that off the screen, but the key point is that he says the President Trump's nominee will receive a vote on the floor of the United States Senate. So he has thrown down the gauntlet. He has said, we will -- we will -- the President will get his nominee voted for. It's obviously the direct opposite of what he said a year ago. Everyone expects that.

I also want to bring into the conversation Vanita Gupta, who's former head of the DOJ Civil Rights Division in the Obama Administration. The McConnell statement, Vanita, is not surprising at all because this is the thing that he lives for almost more than anything is confirming young right-wing judges onto federal courts.

VANITA GUPTA, FORMER CHIEF, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE: That's right. And he's been doing it all this week while sitting on a whole bunch of legislation. Look, this is exactly what anyone would have expected from Senator McConnell. But I think we need to be clear that there can be no confirmation or vote on --

HAYES: We just lost Vanita Gupta right there. Rebecca --

TRAISTER: I agree with what she was saying.

HAYES: Right. Well, I didn't know how the sentence was going to end, but again, not surprising and not surprising that people are marking out this territory right now. None of the statements mean anything. It's what happens. I do think, to your point, Lisa Murkowski's statement struck me as interesting and interesting that she got out ahead on it.

And Susan Collins, who is someone that you have profiled, that you have been studying, that you have been reporting on, and you've been spending a lot of time in Maine. I personally --

TRAISTER: I'm in Maine right now.

HAYES: You're in Maine right now. I don't think it is good for her to have a, you know, a justice -- a Supreme Court vacancy that would spell the end of Roe in this election, an election that she's already trailing. Maybe I'm wrong, but your read of it from where you are?

TRAISTER: No, you're absolutely right. And that's one of the very interesting dynamics. It's one of the things that has hit her hardest, and she has been hit hard. It's going to be a very close election here in Maine. But this week, there was a poll that had her 12 points down, which is astounding. I don't -- I can't believe that it wouldn't be that much of a blowout, but she is definitely in trouble and has to fight hard.

And one of the things that she is hit hardest on is her vote for Justice Kavanaugh. And one of the things that she prides herself on is voting for justice. I mean, she will tell you that she votes for the President's choices for the Supreme Court kind of across the board, right? And I think that this will be a hard moment for her.

HAYES: Vanita, I'm sorry that you got cut off. I want you to let you finish your statement which was on precisely this topic about McConnell's announcement he's going to go forward.

GUPTA: Yes. And nobody is surprised by Senator McConnell's statement. But I think what we need to understand is that voters are actually literally voting as we speak in states like Virginia. The American people need to be able to decide this next nomination and confirmation. There shouldn't be a nomination until inauguration. We have the history of Merrick Garland. We've got everything at stake. We know exactly what is at stake.

And I will tell you, Chris, and I say this to Rebecca too, that there is no fait accompli about this nomination. There is going to be a fight like never before. People understand what is at stake. We have -- we understand what RBG's seat means, what her legacy means, how it's going to touch every single woman's life in America.

People are energized in this country right now. We are six weeks away from an election. And so there is no fait accompli. We are going to throw everything we can at this. And there's simply no rationale or reason. And we know Senator McConnell will do everything he can, but I do not view this as a done deal at all. And we have to keep our eye on all of that. And this is going to energize voters and women in particular.

HAYES: Vanita Gupta and Rebecca Traister both joining us on short notice on an extremely sad, shocking, difficult, head-spinning night. Thank you both for doing that. I really, really, really appreciate it from the bottom of my heart. That is ALL IN for this evening. "THE RACHEL MADDOW SHOW" starts right now. Good evening, Rachel.


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