Summary
Supreme Court Justice Stephen Breyer is set to retire. Could a plea deal put more legal heat on Republican Congressman Gaetz? Senator Mazie Hirono discusses the upcoming Supreme Court vacancy.
Transcript
NICOLLE WALLACE, MSNBC HOST: Ari Melber picks up our coverage right now on THE BEAT. Hi, Ari.
ARI MELBER, MSNBC HOST: Hi, Nicolle. Thank you.
Welcome, everyone, to THE BEAT.
We`re tracking breaking news about the Supreme Court. Supreme Court Justice Stephen Breyer will retire, teeing up one of the most significant decisions of this young Biden presidency.
Here`s how this big news broke today, with Biden stressing he will also respect Breyer`s timeline for any official announcement.
(BEGIN VIDEO CLIP)
LESTER HOLT, NBC ANCHOR: We are coming on the air with breaking news. NBC News has learned that Steven G. Breyer will step down as a justice on the U.S. Supreme Court.
JOE BIDEN, PRESIDENT OF THE UNITED STATES: There`s been no announcement from Justice Breyer. Let him make whatever statement he`s going to make. And I will be happy to talk about it later.
(END VIDEO CLIP)
MELBER: The president there saying he won`t talk specifics yet. That`s a matter of both respect and decorum.
But news this big waits for no one, the U.S. Senate already gearing up for a major confirmation clash going into the midterms. A senator with a vote on the matter joins our special coverage later on tonight`s show.
And White House staff already outlining some of the likely plans. Breyer now expected to announce his retirement as early as tomorrow officially. Reports are, he would leave at the end of this term, giving the White House plenty of time to select and push a nominee.
Now, is that Breyer`s way of also shaping the timing of his own replacement process? Well, I actually asked him about how justices consider their own replacements. This was in a rare interview in the pandemic era on Zoom about two years back.
He touched on some of the pressures here.
(BEGIN VIDEO CLIP)
MELBER: Do you think that justices do or should think about who will replace them and their retirement process while they are on the court?
STEPHEN BREYER, U.S. SUPREME COURT ASSOCIATE JUSTICE: Of course.
From time to time, you think about it. It`s part of the aging process. And it`s inevitable. Now, you have to -- like you say, I mean, we stay out of politics. And, really, sometimes, it`s very hard to just stay out.
But the more the political fray is hot, intense, and so forth, the more it`s -- we stay out of it.
(END VIDEO CLIP)
MELBER: Just a little insight into how he might think about it recently.
And it`s about to be plenty hot for Biden`s first lifetime nomination to the High Court. Senate Leader Schumer now validly vote with deliberate speed. For reference, the most recent appointing to the High Court took about under a month, just 27 days to go from a Trump nomination to confirmation.
Now, as for the court`s direction, going from a Clinton appointee back in the day to a new Biden appointee would not be an automatic swim -- swing, I should say, swing in the composition of the court. That`s a contrast to what we know about what can happen with replacements.
Take, for example, when Trump replaced a Clinton pick, Justice Ginsburg, which moved the court immediately to the right. And here`s the other thing. Biden 2022 could still a long ways from Clinton 1994.
Biden has this liberal Democratic Party coalition that`s really a long way from what Clinton was doing with a centrist party in the `90s. And then you have recent history, Republicans have used raw power to shape this High Court, with the McConnell-Trump axes getting three lifetime justices onto the court in one term.
So many liberals want Biden to promote a visionary progressive jurist right now, a Scalia for the left, who might impact the court even in dissents on what so many view as the moral and existential challenges for America, on defending democracy, on civil rights, on the government`s legal authority to combat pandemics or climate change, the same powers that it can deploy on behalf of, say, the Pentagon or Wall Street.
Now, Biden has not detailed a legal profile for his pick. But this is a court where 95 percent of all justices have been white men across history. And Biden already made news on that front as a candidate, when he vowed to put, if elected, the first black woman on the court.
(BEGIN VIDEO CLIP)
BIDEN: We talked about the Supreme Court. I`m looking forward to making sure there`s a black woman on the Supreme Court to make sure it, in fact, gets every representation.
(CHEERING AND APPLAUSE)
BIDEN: Not a joke. Not a joke. I would push very hard for that.
(END VIDEO CLIP)
MELBER: Now, you could see, when he made that news in February on that big stage, there were a lot of other candidates. It was at a time when he was not necessarily the presumptive nominee.
[18:05:05]
Well, today, he`s the president. And you think about how much things change in Washington. A few days ago, there was a lot of other different stories that were news. Now, this is the biggest thing facing Washington, the White House, the Senate.
And, today, I can tell you, as we report on all this, the Biden White House staff have reiterated the vow you just heard.
In our special coverage night, we will have a little bit more on the list of candidates. That`s later on.
Now, this kind of diversity pledge is unprecedented. But, again, it`s for a court that remains one of the powerful institutions that has diversified the least and the slowest, compared to, say, Congress.
And, speaking of Congress, this whole class will be headed right to the Senate, where Republican Leader McConnell has already previously changed the rules that allow for majority votes on these kinds of Supreme Court picks, a reminder the filibuster can be tweaked, and a change that may now help Biden.
Now, the Senate is not a place for compromise. We know that. When Biden was vice president, that administration`s first pick, Sonia Sotomayor, got 65 votes. Few expect that level of bipartisanship here, no matter who Biden picks.
President Obama later learned the hard way that tailoring a pick for Republicans doesn`t even mean they will give you a hearing, let alone any votes. Now Biden is the president. And he mused last week he said he was still surprised by how obstructionist McConnell has been. And it`s Biden who must decide how to get ironclad commitments from every single senator at his own party, with no room to lose a single vote.
And that`s where you might say, OK, Ari, are we talking about the law? Are we talking about Senate politics? Yes, we`re talking about the reality of the politics that shape who decides the law.
So I`m going to tell you straight up. This is a story that broke today. We have all been running around making sense of it. Here`s the deal. Joe Biden cannot afford a sequel of the opaque, delayed process where Senators Sinema and Manchin basically moved the ball and the goalposts or slowed down when it was a fight about spending.
He cannot afford a backup plan or a strategy where he just hopes that some handful of Senate Republicans might make up for any Democratic votes that he loses, either of the names I mentioned, when we`re heading into the political fire of the midterms.
Now, what`s interesting here is who is in charge of this process right now, because first, in the Democratic Party, and then writ large, during this pandemic and this tough times and coming through the Trump era, Americans, they went with someone with a lot of experience, which isn`t always popular in politics.
But across 50 years in government, Joe Biden has lived through this core process from his youngest days as a senator. Do you know his first ever vote for a Supreme Court nominee? It was all the way back -- we checked -- in 1975 for John Paul Stevens.
And that vote was 98-0. Boy, times have changed. They say, to win a majority on the nine-seat Supreme Court, you have to count to five. Well, when Biden entered the Senate for confirmations, people were counting to 95 or 90 out of 100. I mentioned Scalia, who was what the right wanted. Antonin Scalia was confirmed 98-0 in the `80s, unanimous, including Biden and every other senator.
But now, tonight, I can tell you, Joe Biden faces a Senate with a Republican Party that opposes virtually everything and anything he does. And if he does something that they have said they supported, well, they might just reverse themselves too.
Biden`s got to count to 50. As a matter of math, this will not be about appeasing Republicans, even those who might claim to have an open mind on these issues. And this won`t be about debating Mitch McConnell on substance. It will be about leading his party and any wayward Democrats 250. That`s it.
To paraphrase Jermaine Lamarr Cole`s teaching about learning and math, Republicans was all on the path. Now look at them pitiful, and, all of a sudden, I`m so good at math, count it up, count it up, count it, 50. Count it up. Count it up. Count it.
Let`s turn to our special guests on a huge breaking news evening.
I`m joined by former prosecutor and former mayoral candidate Maya Wiley and former Democratic Senator Russ Feingold, who knows these issues and has voted and overseen these kinds of hearings.
Welcome to both of you.
I start with that Biden-Cole matrix, Senator, counting to 50. Do you think that is the only way through, or should Joe Biden consider trying to peel off Republicans or maybe replace a Sinema with a Collins?
FMR. SEN. RUSS FEINGOLD (D-WI): Thank you, Ari. It`s an exciting day to be on the show.
I have a good feeling about this. And you absolutely count to 50, but some of the names that have been put around already are people who have received votes from Republicans on the Judiciary Committee. And they are excellent choices, African-American women who are already serving in some of the highest courts, and there may be other people as well.
[18:10:13]
I think there`s a chance here, Ari, that the Maginot Line, if you will, will not apply. I think there is a chance that some Republicans will support.
But the thing that would make it less likely is if they see some squishiness on the Democrats` side. So I think you`re absolutely right...
(CROSSTALK)
MELBER: Let me press you. That`s right. That`s why I want to press you, Senator, because you have been in there. It could be interesting to go to 54 or 56.
But I`m asking you, and then I`m going to Maya after you, what does Joe Biden need to do to learn from the shift that I documented, where you go from 98, to the 60s, to where we are now? Because they don`t get to do- over, depending on what happens in November.
FEINGOLD: I mean, obviously, you have to go to the people that have been the most challenging, and you have to get a clear commitment early on and make them stick to it. And that`s not an easy thing to do. But you don`t wait around.
And I have a feeling that these two senators that were extremely unhelpful on some critical issues might want to make themselves well, in terms of their relationship within the Democratic Caucus. And I think that it -- I feel good about the possibility of that working. But Biden has to make that his top priority.
MELBER: Maya?
MAYA WILEY, MSNBC LEGAL ANALYST: Oh, well, I agree with the senator.
And, look, it is imperative that Biden make it his top priority for these very reasons and for your counting, Ari, because the reality is, it is clear that Manchin and Sinema have both voted for many of the black women who we see on the short list to be judges. That`s a good thing. They should be praised for it. They should be reminded of it.
And they should be reminded of the high qualifications for these jurists and the fact that they are well-qualified and highly qualified to sit in this seat, and that the only reason not to support one of these nominees -- and we don`t know who it will be -- but the only reason would be partisan.
And that is something that they simply should be persuaded is not in their own best interests, in the interests of the party or in the interests of the country.
And let me just add one other thing about this. The Democrats are a big tent party. It`s one of the strengths of the party. And that means that any member who is sitting in Congress or any senator sitting in the Senate should be paying attention to how it holds together that big tent coalition.
And that includes acknowledging that we have never had a black woman on the bench...
MELBER: Yes.
WILEY: ... that black women make up only 3 percent of federal judges, that Joe Biden has already made history by appointing 42 judges in his first year and getting them through the process.
This is no time to blow up that record or blow up the coalition.
MELBER: Yes, really interesting, important point.
I think Maya made such a good point, Senator, that we may have lost her camera for a second. I don`t know if you know. In the news, if you make a really good point...
(CROSSTALK)
MELBER: Yes, it just it -- it`s kind of like fizzled out.
(CROSSTALK)
(LAUGHTER)
MELBER: I`m glad we still have you, Maya.
(CROSSTALK)
(LAUGHTER)
MELBER: Senator, all tech glitches aside -- and we`re still in that Zoom era -- I want to read you what Senator Graham said about this here.
He did vote -- and I want to be clear about the record. He did vote for Sotomayor and Kagan in the Obama era. He said -- quote -- "If Democrats hang together," which is what he expects, "they will have the power to replace Breyer without one Republican vote."
Now, that might sound like a bigger headline than it is, because he`s doing what I just did, which is literally just saying the situation. He`s not, for example, saying -- he`s saying they might win. He`s not saying whether he would also vote for the person yet. And he has the right to, of course, vet the person first.
But what do you see there from the Republicans, Senator, perhaps softening the ground for their own side, because they don`t want to necessarily raise expectations if they`re going to lose this going into the midterms?
FEINGOLD: I think that`s right, I think they know they`re going to lose. And I think people like Graham may well decide that this is not one to fight on.
And let`s not forget, as wonderful as a moment as this may be, as we finally break this ridiculous and horrible barrier to not have an African- American woman on the Supreme Court, this isn`t enough. This doesn`t change the balance.
What they did -- and Lindsey Graham was part of it -- was steal two seats on the Supreme Court. And they have locked in a situation where this new justice will have to be there with two other people, and they`re going to have to wait and wait to be able to really effect the law and protect the constitutional rights and the rule of law in this country.
And so we have to remind ourselves of that, of how they abused the process. What I`m most excited about, Ari, is that this president, this Senate, Richard Durbin, the chairman of the committee, Chuck Schumer, the majority leader, will show the country once again how this process is properly and fairly done, instead of the outrageous theft that occurred when McConnell and Trump pulled that stunt.
[18:15:06]
That`s very important, not just for the Senate. It`s important for the Supreme Court to be legitimate that the process be legitimate.
MELBER: Yes.
FEINGOLD: So I am pleased that that will happen.
Senator Feingold, I want to thank you for kicking off our special coverage.
Maya stays with us for another piece of this.
Coming up, we`re actually going to go and look at these top contenders for what we were just discussing, a historic nomination to the High Court.
We also have a little bit more from my own conversations, because Justice Breyer is someone I have spoken to over the years. And we think it`s a fitting news night to reflect on some of that.
And, later tonight, a plea deal that experts say might put more heat on Republican Congressman Gaetz. That`s by the end of the hour.
Stay with us.
(COMMERCIAL BREAK)
MELBER: Welcome back to THE BEAT WITH ARI MELBER.
This is our special live coverage of a breaking news story, a longtime Democratic appointee to the Supreme Court, Justice Breyer, now set to retire.
And that paves the way for President Biden to make his first ever Supreme Court pick. And it`s a reminder of how uproarious this can all be. Yesterday and last week, Washington was in a very different place. Now this is the story. This is the challenge.
Joe Biden`s campaign also had been eying the prospect of how this might come about if he were to become president. He pledged -- and this was the first ever in American history to do this -- that he would put a black woman on the High Court for the first time if elected.
[18:20:06]
(BEGIN VIDEO CLIP)
BIDEN: Number one, I committed that, if I`m elected president, have an opportunity to appoint someone to the court, will be -- I will appoint the first black woman to the court. It`s required that they have representation now. It`s long overdue.
(END VIDEO CLIP)
MELBER: That pledge makes the process already different. Whether the outcome is ultimately different depends on what comes next.
Senate Democrats say they`re ready for the nomination process. And we`re seeing reports about potential short list candidates, beginning with Judge Ketanji Brown Jackson.
Now, she has the kind of background that many liberals like as a public defender, and something the establishment likes, because she`s on basically the second highest court in the land after the Supreme Court, the D.C. Circuit, where she got not only the united Democratic support, including Manchin and Sinema, but three Republican senators.
We touched on that at the top of the hour. And Judge Jackson said this in remarks just last year:
(BEGIN VIDEO CLIP)
JUDGE KETANJI BROWN JACKSON, D.C. CIRCUIT COURT OF APPEALS: One of the things that we have all observed over this past year is that the United States of America has many resources, but it also has many needs, including the need for skilled lawyers who can defend the rule of law and promote access to justice.
I care deeply about reaching the right results and doing my best to render reasoned rulings for the benefit of the people who come before me.
(END VIDEO CLIP)
MELBER: Some progressives see her as a person who definitely has the integrity, who talks the talk, rule of law, independence, fairness, but also has a background that suggests she would care about the lives of ordinary people and systemic racism in America.
Now, if you remember Judge Jackson`s name, or you remember her rulings, I can tell you one that we definitely reported on. So, if you follow the news, you might have heard about it.
She ruled memorably in Trump`s first impeachment, when Trump had instructed the DOJ to argue that all aides` records should be absolutely immune. That was one of the many bonkers claims that were just thrown around in the Trump era. Judge Jackson rejected it and wrote -- quote -- "Presidents are not kings. They do not have subjects bound by loyalty or blood."
Another reported front-runner is another name you might know. Sherrilyn Ifill is president and director of the NAACP Legal Defense Fund. She`s a legal leader in more of an advocacy sense. And full disclosure, she`s been on this program and many MSNBC shows because she has established herself as a leading voice in civil rights.
Here she was speaking to "60 Minutes" about race in America.
(BEGIN VIDEO CLIP)
SHERRILYN IFILL, PRESIDENT, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND: Race lies at so much of the core of what is problematic in our society today, and that is so easily exploitable, because we have not had the courage in this country, and particularly most white people have not had the courage to really decide that this is your job every day as a citizen is to deal with the fractures that, ultimately, if we don`t confront them, will destroy us.
(END VIDEO CLIP)
MELBER: Well, if you notice that Ifill speaks differently there, that`s because of a different role. She`s speaking as a progressive advocate and sometimes litigator, not bound by the rules of active judges, which is what you see with some of the other potential names.
For example, Judge Leondra Kruger on the California Supreme Court, she was also a former deputy solicitor general under Obama, as mentioned, more like government experience than NAACP advocacy.
And then there`s also Judge J. Michelle Childs, a South Carolina District Court judge who was nominated the D.C. Circuit and strongly supported by someone who is close, we know, to President Biden, and that is Jim Clyburn.
So we turn now to someone who has an actual vote at all this, Senator Mazie Hirono, Democrat from Hawaii, who serves on the Judiciary Committee, and Maya Wiley back with us.
Senator, I thank you for being here.
SEN. MAZIE HIRONO (D-HI): Thank you, Ari.
MELBER: We all understand this process. Thank you.
We understand the process and obviously respect that you will go through it, that you will vet whoever is chosen. But I am curious if you can tell us anything about either the individuals on this list or anyone else you have your eye on, as the White House decides and vets who to pick.
HIRONO: First of all, I would like to join, basically, I think our country in thanking Justice Breyer for his decades of service on behalf of the people of our country and the kind of judicial temperament that he brought and how he approached the decision-making.
And, clearly, Ari, based on the -- what you just said, the segment just before, we have a number of really highly qualified black women. And I very much support President Biden`s decision to put a black woman on the court. High time. About time.
MELBER: Maya, I want to ask you about the qualifications, because it`s so easy for people to immediately start looking at things in certain categories.
And it is true that there`s this historic pledge on the table. But, as someone who both understand the way categories have been systemically abused in America, as your work attests to, Maya, but also transcending certain things, let`s be clear.
[18:25:08]
Judges and people with a lot of government experience have tended historically to be sometimes less progressive jurists than people that come out of advocacy, the classic example being Thurgood Marshall.
I`m curious if you see any differences here that we should keep an eye on?
WILEY: Yes, thank you for that question, Ari, because I think it`s critically important to know, first of all, every single one of these attorneys that we`re seeing on this list are highly qualified, not just qualified, but highly qualified.
And remember that Donald Trump threw out the process that had the American Bar Association qualify people he appointed. That was something that we have always had as a neutral nonpartisan way of ensuring that anyone who is brought before the committee has been vetted by the profession to say this person is qualified.
But what`s so important to note here is that the one thing we should not hear in this process is for any one of these candidates who has not sat on the bench yet, that that somehow means they are unqualified, because, frankly, even if we look at all of the just chief justices that have served on the Supreme Court, out of 17, the last 17, nine of them never served on the bench, and they have all been white men.
So I think the point here is to make sure there is no double standard, that we`re looking at qualification that does not require service on a bench somewhere in the country, and recognize that, frankly, even the other eight, very few of them had even very much experience on the bench.
The question is, how well do you understand the law? How much do you -- can you do something that even Justice Sandra Day O`Connor, a Reagan appointee, noted, which is the importance of bringing your experience of the world to the bench?
And it`s one of the reasons why it`s high time and past time, as the senator said, for a black woman. We need that experience on the bench.
MELBER: And when it comes to the Senate, here`s what President Biden just said about what he`s dealt with in the Senate, Senator. Take a listen.
(BEGIN VIDEO CLIP)
BIDEN: I did not anticipate that there`d be such a stalwart effort to make sure that the most important thing was that President Biden didn`t get anything done.
(END VIDEO CLIP)
MELBER: And yet here we are.
I`m curious, Senator, what you see in the confirmation clash ahead.
HIRONO: What I`m looking for is a justice who can be fair and impartial, and who does not have an ideological axe to grind, which is what we saw, as far as I`m concerned, in President Trump`s nominees, including to the Supreme Court.
So, yes, I`m expecting a fight. But there you have it. And I`m looking for someone who`s going to be not only highly qualified, as all of the people that you already talked about are, but who really brings to the judiciary the kind of diversity that I`d like, that -- someone who will consider the impact, the effects of whatever decision-making is on people in our country, so that they`re not making decisions just based on, which I would like them to base it on, law, which would be nice, and precedent, and who are not eagerly trying to get rid of decades of precedent that would protect a woman`s right to choose, for example, and voting rights, et cetera.
But I`d like a justice who also will take into consideration the real-life impact of the decisions he or she will be making.
MELBER: Yes, and that sounds like a good North Star.
I want to thank you on what is obviously a busy time in the Senate and the Judiciary Committee, Senator Hirono joining us, Maya Wiley on these issues.
HIRONO: Thank you.
MELBER: Thanks to both of you.
We have just our shortest break now, 60 seconds. When we come back, I will show you exactly what Justice Breyer told me over the years about these confirmation fights, about the law, and about, yes, chicken.
I will be back in a minute.
(COMMERCIAL BREAK)
[18:30:21]
MELBER: Welcome back to THE BEAT.
We are in the midst of our special breaking coverage. And I can tell you, this is one of those days where you get the phone call. You try to, in our case, learn the story, get in front of a camera. Oh, my gosh, he`s retiring.
And we have been kind of dealing with that. But, at the same time, I will tell you, our producers and journalists here on THE BEAT have been wanting to take a few hours today with the little time we had to present to you what we know about Justice Breyer.
We heard Senator Hirono just say that she thanks him for a quarter-century of work.
And I want to turn now to something we put together for you on Justice Breyer`s actual legacy, the substance, and also what it shows about the future and the decision facing President Biden, as well as where the High Court heads.
So, let me start with where we`re going. The Supreme Court`s shift to the right is actually evident when you go across Breyer`s career, because, in `94, he was widely considered a moderate pick at the time, acceptable to conservative Republicans.
Now, keep that in mind, because, in the days ahead, as we talk about replacing him, you might hurt -- you might hear people on the right saying that Breyer`s too liberal or they don`t want someone as -- quote -- "liberal" as him.
But facts do matter. It was a long-serving Utah Republican and judiciary chairman, Senator Hatch, who personally recommended Breyer to President Clinton as the kind of left-of-center jurist that Hatch could back.
It was also a shift that Republicans wanted, because, if you`re wondering, well, why were they brainstorming people for Clinton that might work, well, they were actually coming off the confirmation of an even more liberal judge, who had just successfully made it onto the court, Ruth Bader Ginsburg.
(BEGIN VIDEO CLIP)
ANDREA MITCHELL, MSNBC HOST: Breyer came close to being selected last year and even came to Washington for an interview. But aides said he didn`t click with the president, who turned instead to Ruth Bader Ginsburg.
One big advantage for Breyer, he is very well-liked in the Senate.
(END VIDEO CLIP)
MELBER: That proved to be true. He was well-liked and respected.
I walked through just some of those numbers over the years of when the very partisan Senate still was not so partisan that they couldn`t put forward qualified nominees onto the court. He was confirmed 87-9.
Then-Senator Biden was in charge of those hearings.
(BEGIN VIDEO CLIP)
BIDEN: Today, the Senate Judiciary Committee welcomes Judge Stephen Breyer, the president`s nominee to be associate justice of the Supreme Court of the United States.
In each of the confirmation hearings that I have had the privilege to chair, I have tried to look at the broader issues at stake when we confirm a nominee to the court, to consider the values by which our nation defines and redefines itself over time, and the means by which government can best express and defend those values.
So, we welcome you to here today, Judge, not merely to measure your competence to sit on the court, but to engage us in a discussion of those important matters.
(END VIDEO CLIP)
MELBER: You know, you put the politics aside, history is pretty interesting. You look at those two individuals, their impact on so many things in America, and here they are at purposes again, this time Breyer giving a heads-up, apparently, to the world, so that President Biden might pick his replacement.
Now, all of this is what, as mentioned, has gotten hotter and hotter as the Washington politics have changed. And when I did get to talk to Justice Breyer as a reporter, I asked him about how you deal with those politically pointed questions from senators in the confirmation process.
(BEGIN VIDEO CLIP)
BREYER: The senators are going to reflect with you on, so you better stop it.
And the way you stop it is, when you disagree with somebody, you talk to them about it. You talk to them about it. You try to convince them. You participate. You vote. And you do it yourself.
(END VIDEO CLIP)
MELBER: An almost old-fashioned idea of how to deal with senators. That was in one of the interviews I mentioned, Breyer talking about the questions.
Now, he would ultimately find himself ruling on some of the most important and pressing controversies in America. It was Breyer who wrote the majority ruling upholding Obamacare, which was challenged several times. This was a series of rulings that continued to reinforce Obama`s signature health care law.
(BEGIN VIDEO CLIP)
BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: Today`s decision was a victory for people all over this country, whose lives will be more secure because of this law and the Supreme Court`s decision to uphold it.
(END VIDEO CLIP)
MELBER: When you talk about that decision to uphold it and what`s changing on the court, on the substance, that`s part of what the court will lose with Breyer retiring. And the question is, who will replace him and would they have similar views about federal power and health care as we go through this pandemic?
[18:35:06]
Breyer was also on the losing side of certain issues in a left-of-center minority. There was a 2004 ruling on partisan gerrymandering, something that so many people have talked about, Rachel on our air for years, how this can undermine democracy.
The court basically didn`t want to get super involved. And Breyer disagreed, saying democracy was at stake, and that "purely political gerrymandering can fail to advance any plausible democratic objective and threaten serious democratic harm."
Like Ginsburg and Scalia on other issues, that was how he would advocate, writing not only for the day, but for history to perhaps turn that dissent into a majority.
Now, Breyer was in the majority on other voting cases. He wrote a closely divided opinion on the winning side, 5-4, stopping Alabama from what would basically dilute the lawful power of black voters in the state.
Now, going back to the interview we did just about two years ago, I asked him something that I actually wonder about, as someone who`s studied the law and reports on the law, which is, how do you do these rulings where politics is the whole story, and you know it`s going to benefit a political side no matter what you do?
How do you stay above that political fray ruling in these kinds of cases?
(BEGIN VIDEO CLIP)
BREYER: We stay out of politics. And, really, sometimes, it`s very hard to just stay out.
But the more the political fray is hot and intense, and so forth, the more it`s, we stay out of it. And, of course, we have to stay out of it, because the decisions we`re making our decisions for 330 million Americans.
(END VIDEO CLIP)
MELBER: Fact-check, true.
The justices are some of the least scrutinized and least covered members of the federal government. We don`t even get cameras in their courtrooms, even though that`s how a lot of people learn about what`s happening in the world, or videos that you take in a courtroom and put on the Internet. Either way, that`s not even allowed.
And yet it`s not just 330 million Americans governed by things like the health care ruling. It`s also life and death. We are a country, rare among civilized democracies, that still executes our own citizens. And the death penalty, as I have reported repeatedly on this program, has proven to be biased against poor people and black and brown people.
I can tell you, Justice Breyer was someone who clearly cared about that. And he was losing these cases, meaning he was writing in the minority in those dissents, about exactly what`s wrong, he said, with the American death penalty.
In 2015, he wrote that it likely constitutes a legally prohibited cruel and unusual punishment. This was a jurist who, whatever else you thought of him, cared deeply about that obligation. All those appeals that go up to the Supreme Court where people would say, not only was this case wrong, or a miscarriage of justice, or someone might be innocent, but someone might be innocent and about to be executed in our name by our government.
Now, when you get back to where we`re headed, of course, like any reported, nothing special about this question, you got to ask a justice, especially as they get on in years, about their thoughts on potential successors.
This was an area where he clearly demurred.
(BEGIN VIDEO CLIP)
BREYER: That is a political process, insofar as nominating and confirming the judge is concerned.
And so asking me about that process, it`s like asking for the recipe for chicken a la king from the point of view of the chicken.
(END VIDEO CLIP)
MELBER: Now, just like for TV hosts, it`s a lower bar for humor from Supreme Court justices, that`s his bon mot that he sees himself as like the chicken. Don`t ask me, the chicken, about the recipe. Go talk to the chef.
Well, that`s really where we are. These are people, these nine justices, who wield such huge powers. And the question is, any time you have one of these vacancies, who should have that lifetime appointment. Remember, nobody else has a lifetime appointment in the other branches, Congress, Senate, president, of course.
Who should get the lifetime power? And what do we want to do on that process? So, we think about what Breyer did, but also where we`re headed.
And, as part of our special coverage, I can tell you, I`m going to fit in a quick break. And, next, we have an acclaimed Supreme Court reporter and a Breyerologist.
Stay with us.
(COMMERCIAL BREAK)
[18:43:12]
MELBER: The Democratic Supreme Court appointee Justice Stephen Breyer announcing potentially this retirement. That`s the reporting we have. We`re eying what he will ultimately say, and soon.
And now we turn to two experts. Linda Greenhouse has been covering the Supreme Court for years for "The New York Times" and writing other pieces as well. And Jeff Blattner is a former student of Justice Breyer himself. He went on to succeed him as chief counsel on the Senate Judiciary Committee.
In fact, I think we have -- I think we have you at Justice Breyer`s swearing-in ceremony. We should mention he`s now an assistant attorney general, for Colorado.
Nice picture.
Welcome back, both of you.
LINDA GREENHOUSE, "THE NEW YORK TIMES": Thank you, Ari.
JEFF BLATTNER, COLORADO ASSISTANT ATTORNEY GENERAL: Thanks, Ari. Nice to be with you.
Hi, Linda. Good to see you.
MELBER: There we go. Nice to have everybody together.
Linda, I start with you. As someone who`s followed the court, I have been reading you basically my whole adult life. And you know these issues inside and out.
Let`s start with your thoughts on Justice Breyer`s contributions and anything about the way forward.
GREENHOUSE: Yes, so I have called Justice Breyer sort of the last enlightenment man in an unenlightened age.
And by that, I have meant someone who really believes in the power of facts and expertise. In his pre-judicial life, he was a professor of administrative law, and that`s where facts really matter.
And he finds himself on the court where facts seem to matter less and less. So, he did write a number of important opinions, but his voice, as I respond to it, has really been in dissent. And I think he, looking ahead, realized that that`s the way it was going to be.
He`s written powerful dissents. He, I think, comes across to many people as sort of a little bit cool and sophisticated and aloof. But there`s real -- been real passion that he`s brought to the court.
[18:45:07]
You mentioned the death penalty cases. And that`s certainly true, but on other things, too, on equal protection, definitely. And he`s written important -- he`s been an important voice as the court has moved ever so slightly, and now kind of reaching a climax, to his right.
MELBER: Jeff, what can you tell us about him and his work?
BLATTNER: I think Justice Breyer, as Linda was suggesting, is, in some ways, a throwback to an earlier era, when institutions worked.
He came up at Harvard at a time when that faculty, largely almost exclusively white males, believed in the law as an institution. His work in the Senate for Senator Kennedy, who really was his sponsor to the Supreme Court, taught him how Congress can work when it did work.
It was a time when you agreed when you could and fought only when you had to. He would meet with his counterpart on Senator Thurmond`s staff every week and figure out where they could get common ground.
So, as a jurist, he brought that background to the court. It was a pragmatic sense: How do we make the law work as an institution, so that democracy works for the people?
The Wisconsin case you cited is an example of that, his dissent in that case.
(CROSSTALK)
MELBER: And, Jeff, how do you think he -- go ahead, Linda.
GREENHOUSE: I was just going to say, when he was chief judge of the First Circuit, the federal appeals court in Boston, there were almost never any dissents from that court.
He really was able to, along with very cooperative colleagues, of course, bring that court together. And I think it came as quite a shock to him that that`s not how the Supreme Court in these times works, not that he -- I think he never actually stopped trying, until maybe the these very last cases.
The vaccine case earlier this month, I think, just drove him around the bend. I think he could not believe what the court was doing in that case.
(CROSSTALK)
MELBER: Let me -- yes, let`s dig into that, Linda, because that goes to what I was going to ask Jeff.
So I will go to you and then Jeff.
How did he, as this -- as you`re reminding viewers, this enlightened renaissance man, as you put it -- and I certainly had less exposure than you did, but, as a reporter, I felt that he was very thoughtful and respectful of everything.
How did he deal, in your view, Linda, with jurists who came on and were, I think it`s fair to say, evidence-wise, more nakedly political at times or what I call late-stage Scalia, where stuff that wasn`t in the record and wasn`t totally true was just sprinkled around, which cuts against everything that you`re taught about court rules.
Linda first.
GREENHOUSE: Yes.
Well, I think he tried -- as the clip you had earlier suggested, tried to work with everybody, with every new colleague as they came, really believed in, as Jeff suggested, the power of persuasion, the power of logic. Just give me the facts, give me the law, and I will show you how it adds up.
And when that didn`t work, when there was an increasing gap between where the law should have been leading the court and where the court ended up, I`m sure that was an occasion of extreme frustration.
And I think the vaccine case really exemplified it. I mean, his -- he just radiated such anger from the bench, unusually for him, from the bench during the argument in that case, when the lawyer challenging the employer vaccine rule didn`t seem willing to take account of the statistics that Justice Breyer was offering, the number of new cases of Omicron COVID a day. And are you telling us that there`s nothing that can be done about it?
It was -- I felt it was a kind of a turning point, actually, the way he behaved on the bench in that argument.
(CROSSTALK)
MELBER: So interesting getting that view from you.
Jeff, I`m going to -- Jeff, I`m just going to tell you, I got 40 seconds for you.
BLATTNER: As Linda was suggesting, Justice Breyer was not a Notorious RBG. He was not a sexy justice.
And he only of late has gotten so frustrated. It`s really a measure of how far the country has come and how much the institutions of government, not just the Supreme Court, but the Senate itself, have changed.
And one can only hope that, instead of being viewed as a throwback, perhaps, in the future, he will be viewed as a model to get us back to a time when institutions work again for the country.
MELBER: Yes, a fitting thought here, as part of our special coverage.
I want to thank Jeff and Linda.
[18:50:00]
We`re going to find a break. When we come back, we do have that development in the Gaetz case.
Stay with us.
(COMMERCIAL BREAK)
MELBER: Turning to a quick update involving MAGA Congressman Matt Gaetz.
"The Washington Post" reporting DOJ is working with an individual named Joseph Ellicott, whose attorney asserts that this individual witnessed Gaetz attending parties regarding potentially illicit or illegal conduct.
Ellicott agreeing to plead guilty to two federal charges. This is a case that is separate from the Gaetz probe, but he`s now working with the DOJ as they investigate whether Gaetz committed any felonies, including sex trafficking of a minor. This involves a review of court documents and "The Washington Post"`s reporting.
Ellicott also linked to Joel Greenberg, who was the associate or ally of Gaetz who pled guilty last may to sex trafficking, and separately has been cooperating with investigators. It is unclear whether Ellicott interacted with Gaetz directly.
[18:55:00]
For his part, Congressman Gaetz has not been charged with any crimes and has denied any involvement in any illegal activity.
Now, we have covered this story and its developments. This is an example where Gaetz`s office did decide to put out a new public statement today, which gives you some sense of the import of the news.
And they say -- quote -- "After nearly a year of false rumors, not a shred of evidence has implicated Congressman Gaetz in wrongdoing." And they remain focused on his work.
We have to fit in a break here. It has been a busy breaking news day, but we have one more thing for you, a development regarding that Oath Keepers leader indicted on January 6, and a development he may not like.
(COMMERCIAL BREAK)
MELBER: And an update from the Justice Department, prosecutions of the insurrection.
We showed you the highest case yet, the most serious charge of sedition conspiracy, and now a judge ordering the Oath Keeper indicted for it, Stewart Rhodes, to be held in jail, detained, until he faces trial, Rhodes accused of orchestrating an attack on the federal government.
He will have to mount his defense, as so many defendants do in our system, while incarcerated.
That does it for me. "THE REIDOUT WITH JOY REID" is up next.