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Transcript: The Beat with Ari Melber, September 21, 2020

Guests: Emily Bazelon, Elie Mystal, Chris Van Hollen

Summary

Funeral plans for Justice Ruth Bader Ginsburg are announced, as the Senate gets set to begin a confirmation battle for her replacement. How might Democrats retaliate if the Republican Senate pushes through a Supreme Court nominee? The Manhattan D.A. reveals tax fraud as part of the investigation into Donald Trump.

Transcript

NICOLLE WALLACE, MSNBC HOST: "THE BEAT" with my friend Ari Melber starts right now.

Hi, Ari.

ARI MELBER, MSNBC HOST: Hi, Nicolle. How you doing?

WALLACE: I'm good for a Monday. Just a little bit of news.

MELBER: A little bit of extra news, and now I guess, from your campaign experience, this is why campaigns are unpredictable, because they are about whatever happens.

WALLACE: Yes, and my experience is that voters will judge you based on how you react to whatever happens.

And, today, questioning the veracity and the integrity of Ruth Bader Ginsburg's granddaughter's account was not a good start for one Donald Trump.

MELBER: Yes, that was striking.

And, again, it goes to whether the truth and the facts are going to bind any of this. We have a lot on it tonight. Always good to see you.

WALLACE: We will be watching.

MELBER: Thanks, Nicolle.

Welcome to THE BEAT. I am Ari Melber.

And it is a different political world from when we last signed off when I was last with you Friday night, upended, of course, by the death of Supreme Court Justice Ruth Bader Ginsburg.

Tonight, as the nation grieves, plans have been announced for the justice to lie in repose at the Supreme Court on Wednesday.

Meanwhile, of course, politics doesn't stop. The Senate faces an epic clash over what comes next. And, tonight, I have a special report on the stakes and the options in that battle. I'm going to walk it through for you. It's something we have been working on. And that's in just a few minutes.

We will also get an inside look at the plans. What's going to happen? We have a top Democratic senator who joins us tonight. So, we will hopefully get some insights there.

But we begin with President Trump plowing ahead on his plan to replace Ginsburg, pledging to name a nominee this week, which would pave the way for a potential vote before November 3.

Now, that does violate, of course, the Republican Party's total position from 2016. It also, as Nicolle and I were just discussing, would appear to impact something that is a part of this, because it's life and death, Justice Ginsburg's dying wish that her replacement be chosen by the next president, also teeing off a round of high-stakes battling today on the Senate floor.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER (D-NY): We're going to hear some crazy things from the other side to defend the indefensible.

SEN. MITCH MCCONNELL (R-KY): The Senate has more than sufficient to process a nomination.

SCHUMER: The Senate has never confirmed a nominee to the Supreme Court this close to a presidential election.

MCCONNELL: We're going to vote on this nomination this floor.

SCHUMER: Four brave Senate Republicans may be the Senate's only last hope.

(END VIDEO CLIP)

MELBER: Anything can happen, but most Senate Republicans are lining up with McConnell so far.

Only two publicly, Susan Collins and Lisa Murkowski, have come out against this plan to hold the vote before November. As the race heats up, meanwhile, Trump and Biden going at it.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I'm just doing my constitutional obligation. I have an obligation to do this.

JOSEPH BIDEN (D), PRESIDENTIAL CANDIDATE: To jam this nomination through the Senate is just an exercise in raw political power.

TRUMP: I'd rather have it before the election. I think it would be better for our country.

BIDEN: I don't believe that people of this nation will stand for it.

(END VIDEO CLIP)

MELBER: The first votes in this 2020 election actually began on Friday, as four states welcomed early voting.

Now the race has been upended once again by a very real issue for so many Americans, which may energize Republicans and Democrats alike.

Joining us now is Neal Katyal, former acting U.S. solicitor general and MSNBC analyst. He's argued 41 cases before Justice Ginsburg. Former counsel to the mayor of New York, Maya Wiley, who is exploring her own run, and David Corn, "Mother Jones" Washington bureau chief.

Good evening, all.

Neal, given how so much of this involves recent history in the battle, I'm curious your views first.

NEAL KATYAL, MSNBC LEGAL ANALYST: Well, first of all, I think it's important to just acknowledge what we lost.

I mean, Justice Ginsburg was such an amazing jurist. She changed our lives in ways that almost no one living or has been alive in the last decades has. She really made the kind of cold words of the 14th Amendment a modern-day reality for so many people and opened doors which are incredible.

So there isn't a way to replace her in six days or six months or six years, or, frankly, six decades.

But what President Trump is doing is, I think, reprehensible. What -- I mean, I take it he's just afraid he's going to lose the election. So he's trying to jam this nomination through.

And I think he should do and the Senate should do what President Lincoln did, which is, when Chief Justice Taney died 27 days before that 1864 election, President Lincoln didn't say, oh, we must stick it to the other side or something like that, even though, obviously, the stakes then were pretty huge.

He said, I'm going to wait until after the presidential election, and then the next president will -- or whoever wins the election will make that nomination.

MELBER: Yes.

Maya, we're getting already a lot from President Trump, who, of course, is quite vocal about whatever his process is, whatever he's hearing and who he might name, which is so high-stakes. Take a look.

(BEGIN VIDEO CLIP)

TRUMP: We're going to fill the seat.

I will be putting forth a nominee next week. It will be a woman.

(CHEERING AND APPLAUSE)

TRUMP: She's excellent. She's Hispanic. She's a terrific woman. Florida. We love Florida. So she's got a lot of things. Very smart.

I just signed my 187th federal judge, it's a record, and two Supreme Court judges. Never been done before. Nobody's ever done the judges that I have done, nobody.

(END VIDEO CLIP)

MELBER: Maya?

MAYA WILEY, MSNBC LEGAL ANALYST: Well, he has been very successful, as a president, thanks to Mitch McConnell, in creating a court that meets his ideological needs.

And I think that's the primary issue here is, as Neal said, we lost a giant for justice in Ruth Bader Ginsburg. We lost someone who, when she sat in that -- in those oral arguments, when she went back to argue with her peers about the right outcome, she took with her a deep sense of what it meant to be a 13-year-old girl strip-searched by a school principal because he heard that she might have two Advils in her bag.

She walked in knowing what it was like for Lilly Ledbetter when she couldn't figure out for years that she was being underpaid compared to her male counterparts.

She had to walk into that room and understand, as someone whose parents had fled a Europe that was too frequently one full of pogroms, of just how important it was to have elections that were democratic, as she dissented in Bush v. Gore, as he dissented in a voting rights case where she said so famously, this is like throwing out an umbrella and thinking you're not going to get wet, because we still have so many barriers to voting fairly.

She really crossed so many spheres of justice. And what Donald Trump has really set out to do is not pick the best judges, but pick the ones who will do the bidding that he sees that his base wants. And that's not what justice is.

MELBER: David.

DAVID CORN, MSNBC POLITICAL ANALYST: I'm also thinking about when Barack Obama was in his last year of his presidency, and a vacancy came up, and we talked about what the Republicans said about not confirming.

But what did Barack Obama do? He didn't appoint the most liberal justice at the top of the want list, the desire list, the wish list of liberals, including people on this panel. I mean, Merrick Garland was a liberal jurist, right? There's no way -- I'm not going to say he wasn't, but he wasn't known for being largely ideological.

And when you're president, you get someone from your side. But Obama did try to find somebody -- and he really did -- who would be acceptable to the other side, realizing the president gets to pick someone close to him than you. But here is some within the realm of possibility.

What we have seen with Donald Trump, as he brags to Bob Woodward, he has no interest in doing this. He has no interest in building out his base politically. He has no interest in reaching out to the side ever. This is about, at this point in his presidential campaign, addressing the erosion -- it's small, but it is there -- amongst evangelical voters and Catholic voters and conservatives who have fallen away from Donald Trump.

They maybe took a flyer on him, and now they're not with them. So this is all about bringing them back and continuing with archly ideological crusade, which is one reason why the Republicans in the Senate have been putting up with him for the last three, four years and covering for his lies and incompetence.

For them, It's a perfect storm in a good way.

MELBER: Well, David, given that recent history, you look at this polling we can show, it is striking that, while people are polarized on everything from the economy to COVID, you have 62 percent saying they agree that it should actually wait until we see who wins this election, only 23 percent opposing that in the first polling on this.

CORN: Well, that's true.

But if you look at polling on abortion rights, on health care, on climate change, I mean, you get to 60, 70 percent consensus amongst the American public on issues that are closer to the Democrats than to the Republicans and solutions.

And so what we have seen here with the Republican project, which is even though they're losing majority elections in the presidential level, even though Democrats win far more House votes than they do across all the contests, and Senate races, they're doing whatever they can to use the system to preserve their standing, even though they're no longer a majority party.

And so the fact that 62 percent say that we should wait to see who wins has no bearing whatsoever on them as a party. Now, maybe there are two other Republican senators out there who are -- have tough elections where this might become an issue.

Often, the Supreme Court picks don't become issues in presidential -- Senate elections.

MELBER: Who? Who are you thinking of?

CORN: Maybe they will.

MELBER: Who are you thinking of?

CORN: Well, who is? Cory Gardner possibly? Grassley has -- he's not up for reelection, but he took a firm stand. He's sometimes contrarian.

We have Mitt Romney. Lamar Alexander, who was wavering on impeachment, has already said that he will vote -- more or less vote, for the nominee. So there aren't a lot of folks out there.

So, the Democrats, it's slim pickings, I think, at this point.

MELBER: Neal?

KATYAL: Yes, I think that is the way it looks right now.

But, God, I really hope that folks in the Senate look into their souls and think about what the right thing to do here is. And I hope four Republicans and four Democrats can come together, because, if they do rush this nominee through, the consequences for the Supreme Court will be dramatic.

I do not understand how Democrats will be able to not expand the size of the Supreme Court, which, of course, is not fixed in the Constitution. And so I think we would have 11 or 13, 15 justices to -- in future years, and it will be very hard, even for people like me, who love the court and revere it with every breath, to say that's a wrong reaction to what's going on.

I'd hate to see that happen. But I think that's going to be the consequence if President Trump goes down this road in the Senate. And so I'm hoping that the Romneys of the world will look at this and say, look, why don't we just have like grownups, do what Lincoln did, not try and rush this through, and let the American people decide, which is famously what the Republicans said in 2016?

MELBER: Yes, really interesting hearing you say that as well. We actually have a lot more on that in the program night, because people are talking about the structural changes.

Our whole panel stays.

Neal mentioned at the top how, even as we go into this clash, it's also important to reflect on Justice Ginsburg's work.

And I want to just do a little bit of that more tonight with you and with our panel.

This legacy also means there's so much on the line right now. Ginsburg's vacancy casts a ton of close decisions in doubt, to say nothing of her broader role expanding what her colleagues understood to be even legal injustices in the first place, something she discussed in the context of sex and gender discrimination.

(BEGIN VIDEO CLIP)

RUTH BADER GINSBURG, ASSOCIATE JUSTICE, U.S. SUPREME COURT: I see myself as kind of a kindergarten teacher in those days, because the judges didn't think sex discrimination existed.

Well, one of the things I tried to plant in their minds was, think about how you live in a world to be for your daughters and granddaughters.

(END VIDEO CLIP)

MELBER: A simple point, but one that was, in her view, needed to be shared.

Ginsburg won many cases as an advocate, from ensuring women serve on juries and have financial rights, like going to the bank or owning a home, but, soon, she would be ruling on such cases. She joined the Supreme Court in 1993.

As Senator Schumer noted in the eulogy today, few would have predicted she would be so widely embraced by supporters of all ages, entering the cultural zeitgeist as a symbol of justice and a kind of timeless cool, with her nickname the Notorious RBG, drawing on a fellow Brooklynite, of course.

Ginsburg's vacancy means some of her legacy decisions could now be deadlocked or even reversed, like upholding protections for undocumented immigrants, or her alliance with the Republican appointee John Roberts, which upheld abortion rights against strict attempts to contain them in Texas and Louisiana. Those are recent decisions.

Or the original 5-4 ruling backing Obamacare in 2012, newly relevant as the court hears a case that could cut down that very law this November.

And unlike the past two vacancies, a Trump pick here could reverse the pivotal fifth vote in each of those kinds of cases I just mentioned, should they return to the court again.

Our panel is with me on all of the above.

And, Neal, given your extensive experience litigating in the Supreme Court, your view?

KATYAL: Yes, I think it will change things.

So, right now, there are five appointees appointed by Republican presidents and three by Democratic ones. And so things like abortion, which actually, just this year, Chief Justice Roberts voted to strike down some abortion restrictions -- that was the first time he did it. His vote will now be irrelevant.

And so the kind of reproductive justice rights literally do now hang by a thread. And this seat is all about that. There's also a variety of other things, like the Affordable Care Act, which is going to be argued the week after the presidential election, in which there's a really kind of bizarre and kind of ridiculous theory to strike down the Affordable Care Act, which President Trump has now embraced, because he couldn't win in Congress and get the Affordable Care Act repealed.

So, now Barr has sent his attorney to go and just tell the Supreme Court, we will do our work for it and strike it down that way. That's a ludicrous lawsuit, but now, with the new -- if there is another justice, that may -- it may actually have some teeth to it.

And, indeed, the front-runner, Amy Barrett, who -- from the Seventh Circuit, has written a paper in The Minnesota Law Review, which I think Senate Democrats are saying suggests that she is against the Affordable Care Act.

MELBER: And for this portion of the discussion, I want to bring in "The New York Times Magazine"s Emily Bazelon.

Welcome. Many viewers know you, particularly on stories like this.

Your view?

EMILY BAZELON, "THE NEW YORK TIMES MAGAZINE": I think that Neal is right. This is a pivotal vote on the Supreme Court.

Chief Justice John Roberts is not really a moderate, but he has sided with the court's liberal bloc on the cases that we were just talking about. And I think, especially with the Affordable Care Act case on the docket for November 10, we can see what the stakes are.

A six-vote conservative bloc would mean that Roberts would no longer have sway. He would no longer be able to side occasionally with liberals. He would also not have the same influence when he joins the conservative bloc over how opinions are written, how far-reaching they are and what the reasoning is.

And so I think this is just a fundamental moment for the Supreme Court. You really can't exaggerate the stakes.

MELBER: Yes, Emily, I also wanted to ask you about the role here of gender both in the law, of which there is a body of civil rights and equality law, and then just gender being the talk of, oh, well, you replace the seat that was held by a woman, only the second woman appointed to the court at the time, by, according to Donald Trump -- we showed this earlier -- him saying blatantly, well, he's looking at women candidates.

And just today, Senator McConnell spoke about the so-called -- quote -- "sexist obstacles," which he was -- he was arguing on the Senate floor that he's concerned about, that that's something he thinks that Justice Ginsburg, he claims, he is happy that she overcame them.

Take a look.

(BEGIN VIDEO CLIP)

MCCONNELL: As she climbed from the middle-class Brooklyn Jewish roots of which she was so proud into the most rarefied air of law and government, the future justice had to surmount one sexist obstacle after another.

And Justice Ginsburg did not only climb a mountain. She blazed a trail.

(END VIDEO CLIP)

MELBER: Emily?

BAZELON: Well, and then I guess this is smart politics. You invoke Justice Ginsburg as a trailblazer for women's equality, and then you nominate a woman, and no matter how conservative, you say that you're falling in her footsteps.

Now, I mean, if the woman who President Trump chooses goes on to unravel a lot of Ginsburg's life's work on the court by cutting back on equality, not just gender equality, but race equality, other aspects of her jurisprudence, well, that's not necessarily a victory for women.

But I think that the Republicans are smart to try to package their nominee as someone who is like Justice Ginsburg, at least in terms of her gender.

MELBER: Emily Bazelon, Maya Wiley, Neal Katyal, and David Corn, I want to thank all of you for the insights here, as we kick this off.

We will be back in just 30 seconds. We have a lot of news.

The Manhattan DA revealing tax fraud as part of the investigation into Donald Trump. Senator Van Hollen here later.

But, first, as mentioned, I have a special report on potential structural reforms of the Supreme Court and whether Democrats should play hardball -- when we're back in 30 seconds.

(COMMERCIAL BREAK)

MELBER: Now we turn to a special report on this battle over filling the new Supreme Court vacancy left by Ruth Bader Ginsburg, the first time President Trump is trying to fill a liberal spot on the court, and thus one which could reverse current laws on issues from Obamacare to abortion to voting rights.

Now, everyone remembers the last time a justice died in an election year. It was six months earlier in that cycle, Mitch McConnell famously seizing on the opening to take that whole seat hostage. He famously blocked any hearing or vote on President Obama's nominee.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Breaking news: Antonin Scalia, the longest serving justice on the U.S. Supreme Court, is dead.

ANDREA MITCHELL, MSNBC HOST: The battle over the Supreme Court instantly redefining the presidential race.

BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: I am nominating chief Judge Merrick Brian Garland to join the Supreme Court.

MCCONNELL: Our view is this: Give the people a voice in filling this vacancy.

SEN. EDWARD MARKEY (D-MA): Well, they essentially stole a Supreme Court seat.

SEN. JEFF MERKLEY (D-OR): This is a seat that was stolen from the former president, Obama. That's never been done in U.S. history before.

(END VIDEO CLIP)

MELBER: That is true.

McConnell broke precedent and seized power over the judicial branch to basically temporarily change the number of justices on the court for his own political ends.

Now, that's a significant fact, even apart from the obvious hypocrisy that Trump and McConnell are contradicting everything they did last time, when there was, of course, an election year vacancy.

Now, Mitch McConnell didn't simply oppose or vote against an Obama pick. He made it clear from the start that he would force the Supreme Court into an eight-justice court, instead of the usual nine justices, to meet his political goals.

That turned out to run for about 14 months, through most of the busy year of 2016, only eight justices, and well into 2017, until Trump's pick was confirmed.

(BEGIN VIDEO CLIP)

RACHEL MADDOW, HOST, "THE RACHEL MADDOW SHOW": Mitch McConnell said that President Obama wouldn't be allowed to put a justice on the court. The Supreme Court seat stayed open for 14 months.

(END VIDEO CLIP)

MELBER: Today, Trump backers claim they are now concerned about the impact of a tied 4-4 court.

You have Ted Cruz saying: "A split court can't decide anything. And that itself risks a constitutional crisis" -- end quote.

Now, that's just blatantly and embarrassingly contradictory, because it was this same person, Ted Cruz, that ensured the court was cut down and stuck in that for 4-4 tie for over a year. He stood firm on that plan from the very start, even at Justice Scalia's funeral, when we caught up with him.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R-TX): I do not believe the Senate should take up any nomination in this election.

It has been 80 years since the Senate confirmed a Supreme Court nominee who was nominated during an election year. And we should not start now. We have an election in just a few months. And I think the American people should be able to choose the direction of this court.

(END VIDEO CLIP)

MELBER: Obviously, that, applied to today, would contradict his current position, which is to cut the court here, make it be basically whatever Trump wants, not what he said then, which was wait.

Of course, they blocked any vote.

And the smaller court, we should note, did go on to tie in a 4-4 split on four different decisions during its time as a smaller court. Cruz didn't mind that then.

Now, this matters now, because Democrats are actually debating whether to keep playing by the usual rules, even as McConnell and Cruz and Trump break them, or if other measures are necessary.

Now, Senate Republicans stole a seat on the court and are rushing to fill another by breaking their own standard, and this as some liberals and even some elected Democrats pushing for a bolder approach.

Now, one proposal is to just play hardball in the Senate. Democrats don't currently have the number of votes you would need it where they can stop this pick. But there are liberals who say they should use their future leverage now and warn McConnell and Trump that, if this seat is filled this way and Democrats win back power, they will balance out these two seats by adding new justices to the court.

Now, these advocates include not just maybe liberal activists, but also some Obama veterans and, as of this weekend, former Attorney General Eric Holder.

(BEGIN VIDEO CLIP)

ERIC HOLDER, FORMER U.S. ATTORNEY GENERAL: If, in fact, they are successful in placing a justice on the court, I think that what Democrats have to do, assuming that Biden is president and there is a Senate majority in for the Democrats, we need to think about court reform.

And, at a minimum, as part of that reform package, I think additional justices need to be placed on the Supreme Court.

(END VIDEO CLIP)

MELBER: So, just as McConnell temporarily cut the number of justices, Holder supports adding it.

Now, can Congress even do this? Yes. The Constitution gives the Congress full power to structure all the courts. That means it can create or abolish lower courts, and it can decide how the Supreme Court runs.

It was a six-person court, which then shifted in size over its first 80 years, settling into the nine-person format that we know of in the late 1800s.

But that tradition doesn't bind Congress if it sees important reasons to change it. Congress used its power to alter the number of justices to thwart what it viewed as an illegitimate president in Andrew Johnson, temporarily cutting the justices to seven justices total to prevent him from appointing any more.

Now, that wasn't about some larger principle. It was about Congress viewing what it saw as a reckless runaway president. That number went back up to nine after he left. Now, many have explored reforming the court long before this week's predicament.

So, let me be clear, because this could be the most important thing in law and politics. Congress has the lawful ability to do this. It's been done before. In the current era, only one party has forced to change to the number of justices on the court, the Republicans, which adds to the hypocrisy.

As Mitch McConnell spoke out in the Senate floor today, he brought up the specter that Democrats may do this, might someday try to change the court's size. So that moves clearly got his attention.

It goes to a wider question facing this Schumer-led caucus. Will they ever play hardball?

The Democratic Party's problem with hitting back has gotten to the point that it's something of a national joke.

(BEGIN VIDEO CLIP)

BILL MAHER, HOST, "REAL TIME WITH BILL MAHER": This is a fundamental problem with the Democratic Party. They look weak, running from a fight, when they should be in there throwing punches.

STEPHEN COLBERT, HOST, "THE LATE SHOW WITH STEPHEN COLBERT": People who believe that Donald Trump is an existential threat to this nation, to the experiment of democracy, to Western civilization itself, take heart, because, for their powerful rebuttal, the Democrats showed a rerun of "The Andy Griffith Show."

(LAUGHTER)

(END VIDEO CLIP)

MELBER: Colbert was mocking a particularly lackluster rebuttal by a Democrat.

But the larger point is where the justice and the politics meet right now.

Trump and McConnell are willing to bend or outright break the rules. Meanwhile, Senator Schumer today on the Senate floor was waxing philosophically about his search to find four -- quote -- "brave Republican senators" who might join him, while Biden is holding out hope that Senate Republicans will either block their party's plan or -- quote -- "The people of this nation won't stand for it."

Now, I do have to ask here, what is Joe Biden talking about? The people are looking to see what he and the Democrats will or won't do.

Is there a line in the sand to be drawn? Will there be consequences for Mitch McConnell famously, publicly stealing the Obama seat and plowing ahead now?

President Obama even warned against McConnell's gambit, arguing it would risk everything getting more partisan.

(BEGIN VIDEO CLIP)

OBAMA: It will mean everything is subject to the most partisan of politics, everything, and our democracy will ultimately suffer as well.

(END VIDEO CLIP)

MELBER: Now, many say democracy is now suffering, but largely in a one-way direction, with one side pushing the envelope.

And while there are risks to escalating this kind of political war -- scholars have studied the risks of what they call constitutional hardball, where there's escalations and retribution, and it gets so bad that it literally risks the judicial balance of power developed over hundreds of years of precedent. That's a real concern to be studied and to be considered.

But I want to tell you something tonight. There are also risks to one-way political asymmetric warfare, when no fire is returned. Then Mitch McConnell's hostage-taking and court-cutting -- remember, he changed the number of justices for over a year -- effectively, it gets rewarded.

As another Republican hard-liner once put it, weakness is provocative. Weakness can invite more attacks. That's something Donald Rumsfeld used to warn about. And it's especially true when you're facing a norm-busting bullet with no fidelity to public service.

Now, I'm not saying this is some easy call. Institutionalists are understandably skeptical of certain kinds of reforms. Joe Biden famously liked the Senate the way it was when he joined it. He's generally opposed adding any justices to the court and says it might send off that -- set off that endless partisan battle I mentioned.

His chosen running mate, by the way, has been more open.

(BEGIN VIDEO CLIP)

BIDEN: I would not get into court packing. We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has it all.

SEN. KAMALA HARRIS (D-CA), VICE PRESIDENTIAL CANDIDATE: I'm open to this conversation about extending the number of people on the United States Supreme Court.

(END VIDEO CLIP)

MELBER: Now, all that was, of course, before Justice Ginsburg's death and thus before the Senate Republicans went towards more hypocrisy, contradicting their own standard with this new plan.

Now, altering the court size is not the only big or nuclear option out there. Progressives are also discussing whether they could get Senate Democrats to try to get leverage out of maybe changing or ending the filibuster, or adding new states to the union, if they do win back the Senate.

There's no simple final answer on whether any of this hardball would work or put more pressure in the Senate or on Trump's plans or further shape public opinion, or, the biggest question of all, would it ultimately be a constructive or a negative thing to actually implement?

But if you feel some deja vu, if you have see Mitch McConnell, making headway if you wonder whether the best legal and political minds in the country are handling this right or not, the first question you have to ask on something this important -- and I'm telling you, this is very important -- first question is whether these hardball reforms should be on the table in the first place, or whether Democrats in the Senate will keep playing by old rules that the other side has so clearly discarded.

I want to get into all of this.

We're going to turn to an analyst at the intersection of law and politics with a strong view when we come back.

(COMMERCIAL BREAK)

MELBER: We're joined now by Elie Mystal, justice correspondent for "The Nation" magazine.

We looked at the issues.

And, sir, I ask you, is it time for Senate Democrats to play hardball?

ELIE MYSTAL, "THE NATION": Absolutely.

Court packing, court expansion, or court reform, however you want to call it, is the appropriate solution in this situation. I is the proportional response. As you laid out so brilliantly in your opening, Mitch McConnell has already changed the number of justices on the Supreme Court.

He changed it from eight -- from nine to eight. If Mitch McConnell can do it, then the Democrats can do it. If the Republicans want to say that the number of justices on the Supreme Court is a function of raw political power, then, when the Democrats have raw political power, they are allowed to use it, and use it effectively.

And, in this case, that means expanding the number of justices on the Supreme Court. I have a lot of arguments, Ari, that we can get into about the good government reasons for having more justices on the Supreme Court. I think that is a legitimately good thing for our polity.

But I also have the vengeance argument here. I do not think that this country can long survive a world where only Republicans get to appoint justices to the Supreme Court.

MELBER: Yes. What you just...

MYSTAL: And that is the world that Mitch McConnell would have us live in.

MELBER: You just put your finger on it.

If there's a Democratic president, no justice. If there's a Republican president, they get their justices. So, as you just put it, if that's the position -- and they have they have shown it in public, and Lindsey Graham and others are almost gleeful about admitting the hypocrisy, because it just reinforces the trolling power play, which has become the proverbial lingua franca of the Republican Party under Donald Trump, and that's the position.

Now, I think the best argument against this -- again, I try to present this. People make up their own minds. The best argument against this is, it's not ideal.

And the problem with that argument, which I think is fair -- and I mentioned constitutional hardball -- nothing's ideal right now. 2020 is not ideal. This balance of power is not ideal. Seats being already taken hostage isn't ideal.

Why do you think it is hard for some of the elected Democrats to see that, if Mitch McConnell's hostage-taking is rewarded, if there's no consequence, then you're actually incentivizing them doing it to you again?

MYSTAL: Well, I think part of the problem the Democrats have faced here is that they're just not thinking big enough, right.

One of the arguments that you hear against court expansion is, where does it end? If they put two, then will put three, and they will put five. Who cares? Bring it.

I say, add 10 justices to the Supreme Court right now. That makes it a 19-member body. If the Republicans want to come out and add 10 justices after, that's 29 justices, that's about the size of the Ninth Circuit Court of Appeals.

Can you give me a really good argument for why the Supreme Court should be so significantly smaller than our circuit courts? I can't.

So, then the Democrats come on and 10 more and 10 more, and we get to 100 justices. I don't care. I can live in that world.

You know why? Because the more justices on the Supreme Court there are, the less important any one random death is to our polity.

MELBER: Interesting.

MYSTAL: This world that we currently...

MELBER: So, let me jump in with two...

MYSTAL: Yes.

MELBER: Let me jump in with two things.

One, Elie Mystal with big Ninth Circuit facts. I haven't heard anyone point out that there are other important places in the federal judiciary that are large. And, by the way, as lawyers know, but people may not care to learn about it, because it's not the most important day-to-day thing in your life, the vast majority of federal cases are adjudicated and resolved in those, as you're pointing out, larger courts and below, not at the Supreme Court.

But, two, because you mentioned the other arguments, and we'd like everyone to hear everything, Chuck Rosenberg, who is a very thoughtful lawyer, as you know, with a lot of experience, he argues against what you're saying. Take a listen.

(BEGIN VIDEO CLIP)

CHUCK ROSENBERG, FORMER U.S. ATTORNEY: Here's the problem, in my view.

Let's say the Democrats take both chambers of Congress and the presidency and expand the number to 11. And then, four years later, the Republicans do the exact same thing and up the number to 13 or 15.

I mean, there's no limiting principle on this. And so what might be an appealing short-term solution, I think, could have disastrous long-term consequences.

(END VIDEO CLIP)

MELBER: So, to build on the colloquy, because you were speaking to this, is your argument to Mr. Rosenberg, and thus Biden and Schumer, that that long-term doomsday scenario isn't really a doomsday at all?

MYSTAL: Exactly.

Why do we need a limiting principle on this at all? One of the things is benefit -- and you already brought up the circuit courts. One of the things that we benefit from the circuit court system is that the judges who here most of the cases are drawn by random lot in three-judge panels.

So, if we had a 50-person Supreme Court, most cases would be decided by a random drawing of three. That would significantly, and I think positively change, the kinds of cases that came to the Supreme Court, because people wouldn't be so sure just which judges they would get.

So there are lots of arguments for why an expanded court, by the way, could hear more cases. That's a thing that's happened -- not to get too much into the weeds, but the Supreme Court has heard less and -- fewer and fewer cases over the years than it used to.

An expanded Supreme Court would hear more cases. That's more opportunity for intellectual, gender and racial diversity. Right now, the Supreme Court is currently staffed by nine people who went to two law schools. What is up with that? You could fix that if you had more.

MELBER: Yes.

MYSTAL: So, there are lots of decent, good, bipartisan reasons.

(CROSSTALK)

MELBER: Not to get too in the weeds either, but your -- what you're suggesting is a similar model that would have the court break out into potentially smaller groups.

And if it's something super important, go full, en banc, when required?

MYSTAL: Exactly.

MELBER: Really interesting.

MYSTAL: Do you know how difficult it would be to have a string of decisions? Let's say the court is 29 people.

Do you know how difficult would it be to have straight up high-profile decisions that came down 15-14? It would almost never happen, because, Ari, as you know, the law is, frankly, just too complicated for that, right?

These high-level jurists have too many things going on to break down along hard-core party lines as you add more and more and more people to the mix.

So, again, from a perspective of making the court less political, having more justices, having their deaths not matter as much, all of those are good things, before you even begin -- before you now reenter the hypocrisy of McConnell and Graham and the Republicans having the current court that's really determined based only on their whims.

(CROSSTALK)

MELBER: Really interesting, which is why we wanted to turn to you.

I suspect this will stay in the debate, and many people think that's warranted.

Also, I haven't seen you since we have gone into the -- into this pandemic remote world. We relied on you many times during the Mueller probe. But I will say, you seem as caffeinated and energetic as ever, which I'm glad to see, Elie.

MYSTAL: The coffee's even closer right now.

(LAUGHTER)

MELBER: Exactly. You're home. You're near the Keurig cup.

(LAUGHTER)

MELBER: Elie Mystal, with the big facts and the legal precedents, thank you, sir.

We are going to fit in a break, but we have a lot more ahead, including a top Democrat who's actually drafting a strategy to try to thwart the McConnell efforts. And we will probably ask about some of what we just discussed.

Also later, we turn to COVID with the secret identity of a mysterious deep state critic of Dr. Anthony Fauci suddenly revealed, with terrible news for Donald Trump -- when we return.

(COMMERCIAL BREAK)

MELBER: We're joined by United States Senator Chris Van Hollen, Democrat of Maryland. He says the Democrats are exploring every possible tool in the Supreme Court fight.

Busy times. Thanks for being here.

SEN. CHRIS VAN HOLLEN (D-MD): Ari, good to be with you.

MELBER: When you look at what the president and Majority Leader McConnell, your response is what?

VAN HOLLEN: My response is that we will use every tool at our disposal to block this abuse of power.

But we also have to keep after another two Republican senators to say that they don't want to move forward or won't move forward until Inauguration Day.

And that means communicating clearly to the American people what's at stake. And that is that, in the middle of this COVID-19 pandemic, where we're admitting the grim number of 200,000 American dead, instead of focusing on responding to that emergency, you have got Donald Trump and Mitch McConnell trying to rig the court, trying to pack the court with right-wing justices, whose first order of business will be to get rid of the Affordable Care Act and protections for people with preexisting conditions.

MELBER: Right.

VAN HOLLEN: And it's very important that this fight is seen in that context.

(CROSSTALK)

MELBER: And, Senator, I think that's true on policy. And we have certainly mentioned the Obamacare in this broadcast.

If they do, as you put it -- quote -- "rig the court" and get this nominee through, do you think that Chuck Schumer should lay out what the consequences would be, including, as mentioned, potentially changing the number of justice on the court, changing the filibuster, changing the number of states in the union?

VAN HOLLEN: Well, I think he's been very clear that, if they move forward on this, that all options are on the table.

But, again, we need to work to the very end to convince another two Republican senators to do the right thing.

MELBER: Well, respectfully, Senator, I'm curious.

And I hear you on finding the two. And folks who followed the impeachment battle or other things in the Senate will recall how those hunts go. We don't know the end.

But, as I was coming on the air, Senator Grassley was coming out for this plan. Most other senators seem behind it. Finding, as you say, those two would be hard.

You said just now, though, that Chuck Schumer has been clear. I think a lot of people feel like it's not clear. All options on the table could mean just simply dealing with this, or it could mean those specific larger reforms.

Do you support any of those reforms as a potential antidote to this?

VAN HOLLEN: So, Ari, two things, first of all.

People didn't think we would succeed at stopping them from blowing up the Affordable Care Act, right? They passed those changes out of the House of Representatives under Paul Ryan. We ended up defeating their effort to blow up the Affordable Care Act by one vote in the United States Senate.

How did we do it? By enlisting the help of the American people, who understood that the consequences were really bad for them. And, as we look at all these Senate races in swing states around the country, it's very important that we communicate that to those voters, so they will be holding those Republican senators accountable as they make this decision.

Second, look, this is not bean bag. No one's playing ping-pong when we're supposed to be playing hardball.

If the Republicans blow this up, if they engage in the kind of total dishonesty which they are apparently prepared to do, then all bets are off. And we will look at all the recourses that we have.

But, again, the big game, of course, is the November 3 elections.

MELBER: Sure.

VAN HOLLEN: We need to win those...

MELBER: And I say this...

(CROSSTALK)

VAN HOLLEN: But, Ari, we need to win those elections.

MELBER: Sure.

VAN HOLLEN: And the Affordable Care Act and health care (AUDIO GAP) front and center in that debate.

MELBER: And I say this respectfully, because you know it's part of just my job.

But asked twice, it seems that you're preparing to end the interview without answering, in addition to the points you have made, which I think are fair.

We were just discussing this with another guest who's pushing very hard on behalf a lot of liberals on this very issue. Your answer to whether you would specifically make any of those structural changes is what?

VAN HOLLEN: Ari, I have always said I'm open, even before this seat opened, to consider important structural changes in the United States Senate.

I mean, after all, right now, we're sitting on a huge amount of important legislation that passed the House that's sitting in the United States Senate. And if we have a majority, we want to be able to move forward on a full agenda, not just repair the damage from the last four years.

So, all those reform possibilities were on the table before we got to this point with the Supreme Court justice opening, and they will remain on the table afterwards, I can assure you.

But, again, if we if we take our eye off the ball right now, before we try to get two more Republican senators -- and, look, we all know that Lindsey Graham, it took him less than 12 hours to totally flip-flop.

MELBER: Yes.

VAN HOLLEN: Right?

You see Lamar Alexander, who we thought would want to retire with some shred of dignity, decide also to flip-flop from what he said.

So, we're under no illusions. But I think it's important that we press this case. And before we discuss all the details of procedural options if we're not successful, we talk to the American people about what the consequences of this court-packing scheme will be.

MELBER: Yes.

VAN HOLLEN: Loss of the Affordable Care Act, loss of women's rights, loss of workers' rights.

And that's an important debate also to win the election. And no one's going to be in a position to do any of the things you're talking about if we don't win the election.

MELBER: Well, there's truth to that as well.

And, Senator Van Hollen, we wanted to get your perspective inside the battle. I appreciate your time.

And we will be right back.

(COMMERCIAL BREAK)

MELBER: Meanwhile, turning to some interesting news in a different legal case.

The Manhattan DA revealing that tax fraud is now part of their formal investigation into Donald Trump. This is from a new filing, which states that public reports into the Trump Organization would justify a grand jury inquiry into a range of possible, crimes -- crime -- including -- quote -- "tax and insurance fraud."

Now, Trump has, of course, famously tried to hide his tax returns not only from the public, but from prosecutors, and saying that he hopes to get this controversy that he recently lost back before the Supreme Court.

(COMMERCIAL BREAK)

MELBER: Thanks for joining us tonight on THE BEAT WITH ARI MELBER.

I will be here tomorrow at 6:00 p.m. Eastern.

And, right now, "THE REIDOUT WITH JOY REID" is up next.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.END

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