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Transcript: The Beat with Ari Melber, September 22, 2020

Guests: Sally Kohn, Libby Casey, Brian Fallon, Cecile Richards


What is at stake concerning women's rights in the Supreme Court battle? Which party benefits the most from a Supreme Court nomination fight? How might Democrats retaliate if the Republicans jam through a Supreme Court nominee?



Hi, Ari.

ARI MELBER, MSNBC HOST: Hi, Nicolle. Thank you so much.

Welcome to THE BEAT. I am Ari Melber.

And as Glenn Frey memorably put it, the heat is on, on the street, the pressure is high just to stay alive. Republicans marching forward to ram through Donald Trump's Supreme Court pick sight unseen. That puts even more heat on, of course, this tense campaign season, with early voting already begun. We're just 42 days from Election Day.

And, to be clear, nobody really knows how this political escalation in the Senate will impact the wider race, considering most Americans already say they oppose Trump's plan to ram this through, a piece of data that obviously includes, at 62 percent, some of his own supporters disagreeing with him.

And as Trump makes this so political, it's notable that, in swing states, new polling shows most voters 52 percent there, also oppose Donald Trump rushing this pick through before the election. Trump also trailing in the pivotal swing states overall, trailing badly in the resources needed to wage this fight in the homestretch.

Now, one of those key states is Florida. And Trump keeps talking about Florida when he talks about Barbara Lagoa, who he is expected to interview this week for the post.

The reported front-runner, though, is Amy Coney Barrett, according to many. Trump has already met with her, obviously, a sign of seriousness.

Now, Biden entered this month with more money than Trump's reelection campaign for the first time ever, over $100 million also pouring in after the announcement of RBG's passing, tens of millions more going right into ground zero of this fight and the future of the court. Money pouring into Senate races.

We're taking a look at this tonight, the platform which handles these donations saying it has the largest surge towards Democrats ever, breaking a 16-year record.

So there are warning signs here for Donald Trump as he leans into what you could call, I guess, the McConnell/Graham school of politics, where hypocrisy publicly, easily proven, visible hypocrisy, is worn like a badge of honor and you brag to your base about how contradicting yourself means that you will go and do anything for Donald Trump, and that, to some people, is a good thing.

So, that's one political approach.

Meanwhile, let's be clear, this understandable focus on the high court doesn't halt the other problems facing the U.S. right now and the Trump administration, as Trump faces fact-checks for falsely asserting the coronavirus effects -- quote -- "virtually no one," the U.S. death toll tops 200,000.

And while many countries are, of course, struggling to contain this pandemic, it's not just a President Trump problem, America's results under Trump do continue to show a contrast to other places.

Take Italy, which was once the center of this pandemic. Well, that country had about 13 deaths on one day last week, while, on that very same day, the U.S. didn't have double or triple or 10 times, but 849 deaths to 13. That would be 65 times that day's toll in Italy, as an example from "The New York Times."

So, let's get into all of it right now.

I'm joined by Jason Johnson, professor at Morgan State University and MSNBC contributor, Sally Kohn, a political analyst and "The Washington Post"'s Libby Casey.

Good to see all of you.

Jason, both things can be happening at once. The president eager to lean into anything other than that other bad news, and yet there are many indications that this potential legislative process, which -- where they do control the Senate, may not ultimately favor him, but given the polling I just showed.

JASON JOHNSON, MSNBC POLITICAL CONTRIBUTOR: Yes, look, Trump's in a lot of trouble. He's in a lot of trouble if he makes this pick. He's in a lot of trouble if he doesn't make this pick.

And I have never seen the president at this sort of level of discomfort and disconfidence. I think it was last week at one of his rallies the first time you ever heard Trump say, if I get elected. He's never showed that sort of lack of confidence before.

But here's what's key sort of going forward. Ever since Mitch McConnell and the president pretty much decided two months ago that they weren't going to bother with coming up with a COVID package or a care package or anything else like that, the only thing that sitting Republican senators could possibly say to prove that they have done anything for the last couple months would be trying to push through this pick.

But if he does -- and this is an absolutely important thing to remember -- look, Bader Ginsburg, even if she had passed -- God bless her. She's passed and she's gone. Even if she had lived, she wouldn't be in a position to affect the 2020 election.

But if Republicans push this through before Election Day, it will galvanize Democratic voters, the same way the Kavanaugh hearing did in 2018. And that could be the tipping point, not for people who are already gone, like Collins or Gardner, but that could be the tipping point for Joni Ernst, for Ernst, and it could be the tipping point for Thom Tillis in North Carolina.

MELBER: Well, that's the big question.

I mean, Libby, we have now two elections in the Trump era, 2016, where a lot of insiders, media, and pundits and political leaders got it wrong. Polls were all over the map, actually, because there were different ones, but certainly undressing Trump.

And then you have the midterms, where, as Jason just pointed out, Democrats did very well, blue wave, despite gerrymandering and other issues, just a huge rejection of Trumpism in that House set of results. And people point to -- he just pointed to Kavanaugh. People also point to health care messaging, bread-and-butter issues.

And so, Libby, with that in mind, I'm curious your views of some of these -- this is "New York Times" key Senate races. Arizona, you have 52-42, Maine, 49-44, Collins trailing there a little bit, North Carolina, tight, some of those within the margin of error, some of them, though, suggesting a potential blue wave, Libby.


The election is so close, and yet so much can happen in the coming weeks. And if Donald Trump puts forward a nominee who Republicans can paint as someone who deserves to be on the court or belongs on the court, that may change things.

Democrats have got to stay on message, not about the person necessarily, but about what the change in the court could mean for people's lives. And you see it already in the messaging, talking about the Affordable Care Act and a very real case that is coming before the Supreme Court right after Election Day.

So, the more that you hear Joe Biden talk about the ACA, and the more that you see senators give speeches on the floor tying the death of Ruth Bader Ginsburg and the loss of her to the Affordable Care Act, to Americans' health care, which also helps them pivot, Ari, back to coronavirus and this pandemic that, as you point out, has killed 200,000 Americans.

So, a lot can happen. And if Republicans are able to say, look, this nominee is reasonable, we have got the votes, we can go forward, I don't think we know. People who say that they're concerned about -- they don't like the idea that this president would ram through someone right now may feel different once they see who this person is, and they see sort of the collegiality between Republicans and this nominee.

But the Democrats have got to stay on the message of what this would really mean for people's lives.

MELBER: Yes, that's a great point that Libby make, Sally, which is that the closer you are to this, the more you look at the history, you look at the McConnell's hypocrisy, and that's process.

Whether or not the person that's actually selected is more or less appealing may affect it, because then, instead of polling on the idea and the process, you get the person, or they could be less appealing. I mean, Kavanaugh was hugely controversial, obviously.

You are -- you're itching to get in, because I see -- I see in your body language.



MELBER: Go ahead, Sally.

SALLY KOHN, WRITER/ACTIVIST: Well, look, I mean, I think this is in a lot of ways a gift for Trump. No one's going to argue that it isn't, because he gets to remind not only Republican senators, but Republican voters why they put up with all his B.S. in the first place.

And even you see the Mitt Romneys, the people who are the supposed dissenters, turns out it is just on style. On substance, they are lockstep. And so if they get a -- and we're not talking about a moderate conservative judge. We're talking about an arch-conservative justice that will fundamentally turn what is a regressive institution even further to the right -- then they -- it will be worth it.

And, frankly, it appears it will be worth it even if they lose -- it further ensures -- I think it was going to happen anyway, but further ensures that they lose the White House and the Senate.


MELBER: Let's pause on that, and then, as they say, I'm going to let you finish, or whatever they say.

But I'm going to pause just to get clarity. You are arguing, as an objective, empirical matter, separate from whatever your views are, because you know a lot about politics, that you think this will ultimately, if they ran this SCOTUS pick through, it will hurt Trump and the Republicans in November? That's your argument?

KOHN: Well, because I think that Republicans were already pretty motivated to turn out. This was going to be a base election, right? So Republicans were pretty motivated to turn out.

Democrats, unfortunately, right, were they that excited about the nominee? They're more worried about the virus. They already thought maybe that Trump wasn't a shoo-in. There were lots of there were lots of variables as to whether the Democratic base -- and, obviously, there's all kinds of voter suppression and barriers to voting.

So it was just going to be harder and less likely. And, listen, in turnout elections, when election is about turnout, it always -- turnout always helps Democrats.

So if this motivates Democrats, and I think it does, it will hurt Trump, ultimately. But I don't think they give a crap, because they get to fundamentally change the court for generations to come.

MELBER: And so, on that point, Libby, do you think there's enough evidence, would you say you largely agree or disagree with Sally's view that this may blow up in the Republicans' faces?

CASEY: Well, a lot of this depends on timing.

So if this is dispatched with and if the Senate is able to actually vote on this before the Election Day, it then may take away some motivation for some of those, like, Republicans, who were going to hold their nose because they don't like the way Donald Trump acts, they don't like the way he treats people in this country, but they really want to see a conservative court.

Maybe that takes some energy out of that. But I think she makes a great point that this is very motivating to the left. This is very, very motivating to Democrats.

And there are going to be -- there are the hard-core, of course, supporters of liberal causes who are so concerned about Roe vs. Wade and other things like that.

Joe Biden's already got them. He's got to make sure they get out to vote, though. And he's also got to try to hit people with this message of what else they have to lose here.

I mean, we're seeing people like Michael Bloomberg pour money into Florida to not convince people to vote alone, but to try to make sure that disenfranchised people, people who have felonies on their record are able to vote, they can wipe away those financial penalties that are being held over their head.

And let's look at the process of that. Let's look at how that played out in the Florida courts, right? And so we're seeing this effort to try to make sure that more people can vote to have their say here, because this is not just about the White House. This is about the Senate as well. And what happens in one state may play differently and translate differently in how it plays in another state that that's a closely contested race.

Colorado is not North Carolina.

MELBER: Jason?


Yes, so a couple things with this. I want to make it clear what I mean by how this ends up impacting things. As I have been saying for months, as a political scientist, there are no undecided voters. There's nobody who's undecided. There's not one person in America right now who's like, I was going to sit on my hands and knees and I wasn't going to do anything about this race, but now, because Ruth Bader Ginsburg...

MELBER: That's a big claim.


JOHNSON: No, that was not going to happen.

MELBER: Now, Jason, give out your Twitter handle.

JOHNSON: It's true. It's true.



Anyone who's undecided can hit Jason...


MELBER: Say again?

JOHNSON: @DrJasonJohnson. I don't believe them. I don't believe there are undecided voters.

MELBER: @DrJasonJohnson if you are -- and you can't be an egg.

JOHNSON: I academically don't believe it.

MELBER: You can't be an egg or a bot. But if you are under your own real name...


MELBER: ... and you are undecided, and you don't work for Vladimir Putin, you could tweet at Jason. Maybe we will revisit this, because that was a big claim you made.

I think a different way to say it -- and then I'd love you to finish your point. A different way to say it, scientifically, is, the share of true undecideds in the Trump polarized era is far, far lower than it normally is. Whether it's zero out of hundreds of millions is tougher, but go ahead.


In our public discourse, we often confuse people being undecided between the candidates and undecided as to whether they're going to vote. And I think a lot of polling fails to push people.


JOHNSON: No one is trying to figure out if they want four more years of Trump or they want Joe Biden. They're trying to figure out they want to bother to vote at all.

So, the significance of Trump trying to push through a new nominee at the last minute, the final moment, it could move some Democrats, certainly far left progressives, maybe even some people in the side who were like, you know what, I didn't want to go through the bother of voting.

But if you look at the idea of Roe vs. Wade being overturned, voters are more motivated by something being taken from them than something being given to them. And if Ruth Ginsburg is replaced by an arch-right conservative, Democrats and left-leaning voters will see something else having been taken from them.

And that motivates them to vote. That's one of the reasons why I don't necessarily think Republicans will push this through before Election Day. They don't have to. They can still put somebody in the lame-duck session.

MELBER: Sally?

KOHN: I just love everything you just said. Jason. I 100 percent agree.

I mean, look, I think maybe there's four swing voters. But what's interesting is, is that Democrats still operate as though they're the most important voters in our country.

MELBER: Right.


KOHN: And, now, I happen to think, right, incidentally, that this is some implicit white supremacy on the part of the Democratic establishment that says that, oh, oh, the voters that matter the most in our country are these white suburban women and these blue-collar Rust Belt workers, when the actual game, the actual political fight right now is about turning out the margins of voters, the young voters, voters of color, the historically underrepresented and disenfranchised voters in our country.

And Jason's exactly right. This is the kind of thing that makes people do that. I would note that -- and I'm not endorsing this, but there are, in fact, a lot of people among the Democratic base, including the far left, who do feel that voting for Joe Biden is in effect holding their nose. It is more a vote against Trump than for Biden.

And I do think that this is massively motivating to that base, as it should be.

MELBER: First of all, Sally, I have known you for many years in and around politics. So when you say, I'm not endorsing this, but I was afraid you were going to say something way more extreme than that.


MELBER: With regard to Joe Biden's position in the party, he is both well-known and beloved figure in many ways, I think it's fair to say, but, also, it's also fair to observe that, in the primary, many Democrats were obviously measurably looking for something else for the future.

That's documented. And yet he was still beloved and ended up being a consensus choice.

I'm running over on time.

I want to give Libby, who's nodding, a final word.

CASEY: Well, when you see Chuck Schumer out there with Congresswoman Ocasio-Cortez speaking together and having events together, this is exactly what Sally is talking about, about showing that Democrats are like, we all had to get on board here. Everyone's got to get out to vote. You got to vote all the way down your ticket. You got to be present for this.

And I think those are the kinds of shows of unity that Democrats are going to have to have.

MELBER: Yes, really, really interesting, in my biased opinion, great panel on a lot of big issues here.

So, Libby Casey, Sally Kohn, and Jason Johnson, appreciate you guys. Thank you.

KOHN: Appreciate it.

JOHNSON: Thank you. Thanks, Ari.

MELBER: We are back in just 30 seconds, a big reality check on these COVID claims.

There's new calls for Democrats to get tough in more creative ways on the Supreme Court.

But what we think is most important, when we're back in 30, I have a special report on what is at stake when it comes to women's rights and the things that Justice Ginsburg says is most important -- when we're back in 30 seconds.


MELBER: Turning to tonight's special report, what is it stake in this Supreme Court fight?

President Trump set to make his third pick for the high court. If confirmed, Donald Trump will have put more justices on the court in one term than either Presidents Obama and Clinton did in two.

Now, part of that is arbitrary luck. Clinton faced two vacancies in his first two years in office, then none in the next six. Justices, of course, decide when they want to retire or Mother Nature decides when they pass away.

But part of it also was Republican hostage-taking, as Mitch McConnell stole a lawful appointment from Obama in 2016. That's minus one and, of course, added it to Trump. That's plus one.

But this fight over Ginsburg's seat is not at all the same as the last two of Trump's nominees. This is -- and, if you understand nothing else, understand this -- this is the first time that Donald Trump can alter the balance on the court, because he is replacing a liberal vote with now a Trump vote.

That's different than the last two vacancies, which were justices appointed by Republicans. And that's one of the reasons that so many progressives view this as a time for potentially extraordinary action.

Now, many different issues, of course, hang in the balance. But if you ask the late Justice Ginsburg, she would tell you that her work on equality, feminism, and sex and gender discrimination are some of the most crucial advancements that she made in her life in law, many of which turn on the seemingly obvious, basic fundamental principle that people are equal, so women have the same rights and opportunities as men.

Ginsburg's work as a judge, her jurisprudence applied that basic principle to the workplace, to financial independence, and to women's health and women's bodies.

So, she was a vote to uphold, for example, abortion law when she joined the high court, and which remains the law of the land today. Roe vs. Wade protects, for example, a woman's right to choose, and the later cases that grew out of it in the law limit and control how the government, federal or state, interferes with any burdens on that legal choice.

Now, before the Supreme Court ruled on Roe in the early 1970s, over 30 states in America banned abortion. It was just illegal. That is the history and the reality. And that is very relevant tonight, because Donald Trump's allies are demanding that he replace Ginsburg with a legal anti-Ginsburg.

And let me tell you in plain English exactly what that means. They want someone who not only personally or religiously opposes abortion, but someone who will rule to make it illegal in America.

OK? So, before we go any further, it is worth hearing and understanding the reality of what women face in that situation, like before 1973.

And, as a newscaster, I have to warn you, some of this is graphic. But, editorially, we think that's all the more reason to reckon with it right now, before U.S. politics and the U.S. government potentially pushes the U.S. back into this reality again.


UNIDENTIFIED FEMALE: Someone gave her a hanger abortion, perforated her uterus and her bowel. She was in septic shock. And she died.

UNIDENTIFIED FEMALE: He said: "I'm not going to give you any anesthetic." And he said, "If you scream, they will hear you."

UNIDENTIFIED MALE: Got on her kitchen table and watched as she inserted a plastic tube that had been boiling in a pot of water.

UNIDENTIFIED FEMALE: The doctor had actually left in tissue, and had caused massive infection in this whole area of my body.

UNIDENTIFIED MALE: Your uterus is probably so scarred that you will never be able to get pregnant again.

UNIDENTIFIED FEMALE: A lot of them were afraid to go to the E.R., and so they just bled out.


MELBER: Medical experts and doctors stress how those conditions were terrible for the patients, procedures without the required safety, without antibiotics, sometimes without doctors.

And, to be clear, this was common, hundreds of thousands to a million women estimated annually getting what were then illegal abortions that way in the '50s and '60s.

And the Supreme Court ended all that by ruling there's this constitutional right to choice. Now, in the law, that's a national holding. So that is the baseline, and then the court basically used its jurisprudence to also respect that the states have a role in regulating and defining the details of that with that baseline.

That's an approach that the Supreme Court refined further in 1992 in a landmark case called Planned Parenthood v. Casey. And that was authored by the first woman ever appointed to the Supreme Court, a Republican, Sandra Day O'Connor, who noted that there are strong and legitimate religious objections to this practice, while also noting in her ruling that women are entitled to their liberty under the U.S. Constitution.


TOM BROKAW, NBC NEWS ANCHOR: That new Supreme Court ruling on abortion giving the states even greater power.

UNIDENTIFIED MALE: But does not overturn the central holding of the Roe vs. Wade decision that legalized abortion.

UNIDENTIFIED FEMALE: Justice Sandra Day O'Connor, who wrote the decision, said that, "While abortion may be repugnant to some, our obligation is to defend the liberty of all."


MELBER: The liberty of all.

Now, very next year, Ginsburg became the second woman on the court, where she was a key leader in the voting bloc on these issues, joining opinions that struck down laws that made other efforts, like a Nebraska law that failed to protect the lives or health of pregnant women, which she wrote about and said that it instead chipped away at the private choice shielded by Roe and modified by the '92 ruling that I just mentioned, Planned Parenthood v. Casey.

Now, as the anti-abortion movement continued to push those kinds of laws to narrow access, especially access for poor women, Ginsburg would dissent and call out her colleagues on that court for alarming steps that simply didn't take those rulings that I just mentioned, those previous rulings, seriously.

And then within the last five years, she was the crucial fifth vote halting a Texas law that could effectively ban most abortions in that entire state. And just this summer, she was again that fifth and crucial vote for a similar measure that would have restricted access in Louisiana.

And, as a justice, she spoke bluntly about what she thought those laws aimed to do. She argued they discriminated not only on gender, but on class, by specifically targeting poor women in America.


RUTH BADER GINSBURG, ASSOCIATE JUSTICE, U.S. SUPREME COURT: All of the restrictions that we see in states like Texas operate only against poor women, the people are far from the big cities and couldn't afford to take a day off from work.

Restrictive abortion laws operate against poor women. And that's the sad story.


MELBER: And that's the sad story that she tried to patrol, indeed, joining sometimes with Republicans for that bloc.

But that fifth vote right now tonight, I can tell you, as a matter of fact, by her death, that fifth vote is missing. That means if last year's case came right back right now, it would just deadlock at 4-4, and a new justice can reverse those rulings entirely, if that conflict goes back to the court.

And this is the confirmed strategy of many conservative groups and some states to limit abortion access, making it, for example, a reality right now that there's just one clinic per state in six different states in America. Then they keep pushing legal cases until the court will join a strategy that effectively makes abortions impossible for any non-rich person to get or unavailable, if not technically illegal, in entire regions.


RACHEL MADDOW, HOST, "THE RACHEL MADDOW SHOW": Missouri will become the first American state to go completely dark in terms of legal abortion providers since the Supreme Court ruled in Roe vs. Wade

UNIDENTIFIED FEMALE: You can imagine our anxiety level here at the clinic.

KRISTEENA BANDA, CLINIC DIRECTOR: It's extremely devastating to think that that is a real possibility here. A lot of these women will have nowhere to go.

UNIDENTIFIED FEMALE: We go through this over and over again as abortion providers. So, sometimes, I'm hard on myself and I ask, why do you act like you're so shocked?


MELBER: That's what's already going on.

And then, legally, what is already almost gone becomes potentially a path to completely obliterate it on the books.

Now, Donald Trump has thus far impacted the court with those two swaps I mentioned, Trump conservatives replacing traditional conservatives. But those changes didn't fundamentally reshape the voting bloc on this issue, which is what can happen if a certain type of conservative replaces Ginsburg, something she was very aware of when she offered this warning five years ago.


GINSBURG: This is something central to a woman's life, to her dignity. It's a decision that she must make for herself.

And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.


MELBER: That's how she laid it out. That was her life's work. And it's part of what she did on the court.

As mentioned, there are genuine and strongly held beliefs on both sides of this issue. Religion courses through so much of it. But if you take this seriously right now, you have to look at the implications.

Of course, we live in a world where you might say, OK, Ari, every other night, we're being told this is the big one, this is the big fight, this is the most important X ever.

But this is actually the most pivotal potential change on equality, on the rights of women in America, more so than anything else that Donald Trump has done or may ever do.

And you have to ask yourself -- and we're going to get into this tonight -- why is it that people who talk about precedent and conservatism and upholding American traditions turn to radicalism on the issues that they choose?

It would be conservative and precedent-oriented to maintain this balance in the law that I have just described to you that's operated now since Roe. And it would be something else, indeed, something radical to jam through this justice to radically overturn it.

And we have, we believe, the right guest to get into all of this.

I mentioned that case, Planned Parenthood v. Casey. The former head of Planned Parenthood and women's rights activist Cecile Richards -- when we're back right after this.


MELBER: We're joined now by Cecile Richards, the women's rights activist, former president of Planned Parenthood, and co-founder of the women's rights organization Supermajority.

First of all, thanks for being here tonight.


MELBER: We look at the history because it is the reality of the lives lived and what is hanging in the balance.

I'm curious your views on all this tonight.


Well, I appreciate your segment. I think people don't realize that, before Roe, young, healthy women routinely died in emergency rooms across this country. And it's just a history we should never repeat.

It is extraordinary that, as you say, too, Justice Ginsburg wasn't just one more vote. She was a pivotal vote, not only on abortion rights, on voting rights, on so many issues.

And, somehow, Mitch McConnell and now Donald Trump have made this issue now front and center for women across this country, not only, of course, abortion rights, but, as we know, five days after this election, the Supreme Court will hear the case that they had been pushing that would overturn the Affordable Care Act, which would mean 20 million people potentially losing their health insurance coverage, including millions of women who have preexisting conditions.

This issue, health care access, was the issue that the Democrats won on in 2018. And I believe now they have just really reignited women on this issue and, of course, on the issue of abortion rights.

MELBER: Let me press you on something that comes up a lot, and that we only alluded to briefly in the piece, which is, there is a view on the right that, no matter how far they go, they don't get justices who have actually stepped up and completely overturned Roe.

And I pointed out tonight how close that time is coming. And there is as well a view in the rest of the country that I wouldn't say is strictly ideological that, well, you hear about this a lot, but Roe has not been overturned.

What do you say to those individuals who look at this as something that's often discussed as a potential, but they don't believe that this is around the corner potentially?

RICHARDS: Well, I think what you point to is really important, and that is that Donald Trump ran as a candidate and now as president saying he will only appoint justices to the Supreme Court that are committed to overturning Roe vs. Wade.

And, as you say, he's already appointed two of them. And this would give him a third appointment, would completely shift the balance on the court. So it's -- this isn't a hypothetical. This is real.

And, as we will see now that they are going to jam appointment through just weeks before a presidential election, I very much hope there's a conversation about this issue, because women have had this right for more than 40 years.



Do you view the voting bloc I mentioned basically in those Texas and Louisiana cases as the anti-Roe bloc? Do you view that as four sitting there, and this new Trump person would be the fifth?

RICHARDS: Well, of course, two of these justices are relatively new, but all of their voting to date has demonstrated that they are opposed to Roe vs. Wade, that they do not respect precedent, and that they -- and that is -- look, the president vetted these judicial nominees himself.

He's the one who put them forward. He's putting another one forward, and you can bet on it. This is a total threat to women's ability to make their fundamental decisions about their own pregnancy.

And the last thing I will say on this, Ari, is, women already are opposing Donald Trump. I think the latest polls are that suburban women by 30 points are opposing this president. This move to get rid of the Affordable Care Act, to end people's health insurance coverage, to end coverage for preexisting conditions, and now threaten the right to safe and legal abortion is only going to inflame women more, and we're going to see that on November 3.

MELBER: Well, it's interesting, as you say, what this does.

It's been a theme throughout the broadcast of both the substance and the ethics of these issues, these legal issues. And then what do the people do, if anything, about it. I see that you think this could be part of a huge wave. The stakes are quite high.

Cecile Richards, really appreciate your insights tonight.

RICHARDS: Good to see you.

MELBER: Good to have you. Thank you.

We're going to fit in a break, but up ahead, we have a lot more Dr. Fauci fact-checking Donald Trump.

And how is the strategy playing out on this very issue we're discussing on the Supreme Court? Chuck Schumer had a plan he laid out Monday. How's it faring today? We may have some surprising results for you.

Also, Obama veterans and AOC uniting. We will tell you all about that when we come back.


MELBER: Turning to developing news on something that just about everyone in the world cares about, this COVID vaccine hunt.

The FDA is announcing new guidelines that actually makes it even less likely that anything would be cleared for use by Election Day. That has to do with public safety, but also undercuts Donald Trump's many claims to the contrary.

"The Washington Post" reports the FDA will issue these new rules. And it will help transparency and, they hope, public trust in any vaccine that ultimately does emerge.

Experts have worried that Trump would rush ahead for political purposes, even if it endangered American lives.

Meanwhile, polls also show that people are worried that Trump is politicizing this scientific process, CDC in the Trump administration era under scrutiny for removing guidance about how the virus might be transmitted through the air. They have said thus far that was only a -- quote -- "error."

Now the death toll has hit 200,000, Donald Trump is saying that there is progress here that is -- quote -- "terrific."

Dr. Fauci himself has pushed back against that.


TREVOR NOAH, HOST, "THE DAILY SHOW WITH TREVOR NOAH": If you look at the numbers, Trevor, the numbers are telling.

We have in this country now close to 200,000 deaths. We have six-million plus infections. You can't look at that and say that's terrific.


MELBER: When we come back, we have a very special guest on the strategies in this big fight over the Supreme Court.

Stay with us.


MELBER: Turning to tonight to an update in this Breonna Taylor case.

The mayor of Louisville, Kentucky, declaring a state of emergency ahead of a potential decision on whether there would be charges against the officers who shot and killed Taylor in her home last spring.

The decision could come as soon as tomorrow. And all of this news comes a week after the city did reach a settlement that we reported on with Taylor's family in the wrongful death suit.

There are some who view the announcement of the emergency situation as a clue about what the decision might be on charges. Of course, we don't know what they will do until they do it. We will stay on that important story.

And when we come back, what I have been telling you about, many liberals demanding a different approach in taking on both Mitch McConnell and Donald Trump on this epic court clash.

We have a special guest with plans and a lot of money when we come back.


MELBER: Turning to the battle over Trump's plan to rush through this replacement for Justice Ginsburg on the high court.

Democrats are debating basically two different strategies in response. Both have tradeoffs. The first is talk of going big, return fire against what they view as McConnell's illegitimate attack on the court.

Progressive leader Alexandria Ocasio-Cortez has been urging her colleagues to add seats to the court, balancing those stolen by the GOP, and Obama officials like Eric Holder now backing that plan.

In a similar vein, liberals pushing Democratic senators to add new liberal states to the union and spend these next weeks grinding McConnell's Senate to a halt, one Senate veteran pushing to obstruct McConnell on unanimous consent agreements, quorums and hearings, and then double down if Democrats win in November.

You see there several planks of that.

That's one liberal approach, fight fire with fire, but risk partisan escalation.

Then there's also the more conventional approach coming from the Democrats who actually lead the Senate caucus and the party's nominee, Senator Schumer laying it out on the Senate floor Monday morning, a strategy that focuses almost entirely on trying to recruit partisan Republican senators to turn against Donald Trump.

Now, let's be clear. Facts are facts, and the core of Chuck Schumer's strategy has already fallen apart.


SEN. CHUCK SCHUMER (D-NY): There is only one way for us to have some hope of coming together again.

UNIDENTIFIED FEMALE: Senator Lamar Alexander have pledged in a statement to consider President Trump's SCOTUS nomination.

SCHUMER: That is for four brave Senate Republicans to commit to rejecting any nominee until the next president is installed.

MADDOW: Senator Graham said he's happy to go ahead with plans to fill this vacancy on the Supreme Court, never mind what he said in the past.

JOSEPH BIDEN (D), PRESIDENTIAL CANDIDATE: A few of those few Senate Republicans, please follow your conscience. To jam this nomination through the Senate is just an exercise in raw political power.

UNIDENTIFIED MALE: Chuck Grassley of Iowa and Cory Gardner of Colorado both say they will support moving ahead with the nomination.

SEN. MITT ROMNEY (R-UT): If a nominee actually reaches the floor, then I will vote based upon the qualifications of that nominee.


MELBER: And we're joined now by Brian Fallon. He worked actually as an aide for Senator Schumer. He was also the national press secretary, you may remember, from the Clinton campaign, and he's the executive director of the group Demand Justice, which is now pouring $10 million into this Supreme Court battle.

And he hopped on the phone for us.

How you doing, Brian?


MELBER: Absolutely.

When you look at that piece of tape I just showed, it seems that the Biden-Schumer approach has already faltered in just looking for Republican senators to come along. Would you agree?

FALLON: Well, look, the bottom line is, we can't solve for or fix the fact that Senate Republicans, led by Mitch McConnell, are beyond shame.

So, in every sense, this is a breaking of our democracy, in terms of what Republicans are doing. And the fact that they have been able to sort of circle the wagons and in 48 hours commit themselves to drive over this cliff, that is something beyond our control, because they control the Senate as we speak today.

What we can control is, in the weeks that remain between now and the election, we can turn up the temperature to a fever pitch. We can make the Republican feel political pain for what -- the path that they're taking the country down.

And, in so doing, I think we achieve three things. Number one, we increase the chances, however small they may be, of still potentially trying to defeat the nominee, because, if we can get to the election, Ari, I think it's a whole new ball game.

So, if we can at least succeed in putting some pause in their mind, where this thing is slightly delayed, so that the vote doesn't happen before the election, I think that the whole thing may take on a new complexion in a lame-duck.

Number two, fighting like hell means that we brandish this issue against the Republicans in their Senate races. And I think that they -- we can make them pay a political price for this, especially when it comes to invoking the effect this will have on the Affordable Care Act case that's going to be argued one week after the election.

And, third, in carrying this out, we can create and summon the resolve to do something about this, to seek redress in January of 2021, if we have taken back the Senate. And, to me, that means adding seats.

I'm not surprised that Joe Biden and Chuck Schumer are not leading with that message right now, because, in their minds, it's a little ahead of the ball game. But we in the grassroots, we in the outside, we need to summon our will and collective muscle behind building support for that idea, so that it's there for them to tap at the ready after this happens in January.


Brian Fallon, speaking to us here by phone on this big battle.

And so all of what you said makes sense and seems to be more on the pressure and aggressive side.

I am curious, given your insights on this -- I mentioned some of your experience -- whether you understand why some of the -- sort of the voters and Democratic Party faithful are confused why Chuck Schumer even spent that opening volley yesterday looking for these Republican Senate votes.

And we have a little bit of a comparison here of the deja vu from impeachment. Take a look.


SCHUMER: Four brave Senate Republicans to commit to rejecting any nominee until the next president is installed.

I hope, pray and believe there's a decent chance that four Republicans will join us. If they do, we will have a fair trial.


MELBER: Curious if you think it's time to stop hoping for those four brave Republican senators?

FALLON: Well, I think -- in Schumer's defense here, I think his mind-set in how he's played the first 72 hours is that he knows that we have a fundamental advantage on the question of whether voters agree with the idea of jamming this nominee through before the election.

There was a poll today, Ari, that came out that showed, by 20 points, the public doesn't think we should be doing that. So I think people like Schumer and Biden don't want to jeopardize our standing on that question, where we're ahead by 20 points, by introducing other variables here.

He's now -- now I think the Republicans' shamelessness is in stark relief. And now I think we have a little bit of justification to take it out on them politically at the polls in November and then, if they do follow through on this even still, to commit ourselves to reforming the Supreme Court.

So I think, in Schumer's mind, this is probably the first act of a long play. I don't think he was born yesterday in thinking that there was actually a strong chance of four Republicans doing the honorable, statesmanlike thing.

I think he wants to lay bare for the public that this question that the Republicans trail with the public on -- behind on 20 points, that this is really going to happen, they're really going to push through with it. And then we're able to parlay that into a political permission structure to do something big about it.

MELBER: Yes. And interesting to get your perspective on that.

You and other officials who are seen as part of the leadership of the party -- we mentioned your credentials -- have also been pushing for this larger systemic reform, which is very interesting. We have covered that here.

I want to play a little bit of Joe Biden's response on that. Take a look.


QUESTION: Would you consider adding more Supreme Court justices to the bench?

BIDEN: It's a legitimate question.

And let me tell you, I'm not going to answer that question.


BIDEN: Because it will shift the whole focus.

That's what he wants. He never wants to talk about the issue at hand. He always tries to change the subject.

But let's say I answer that question. Then the whole debate is going to, well, Biden said or didn't say. Biden said he would or wouldn't.

That's -- the discussion should be about why he is moving in a direction that's totally inconsistent with what the founders wanted.


MELBER: So, Brian, I got about a minute before I head off to Joy Reid.

I give you the final word on the nominee's response to something that you and others have said should potentially be on the table, is structural reform.

FALLON: So, Joe Biden, to me, Ari, is going to be a lagging indicator. He's not going to be a leading indicator.

He's not going to lead with his chin on this and try to bring the country along on the idea of adding seats. It's our job from the bottom up to convince the public that this is a necessary and proportionate response to what Mitch McConnell is doing if he goes ahead with stealing two seats in four years.

I think we're already on the way to getting there. There's a poll came out today that showed a plurality of voters already agreed that, in this scenario, it would be justifiable to go ahead and change the composition of the court.

So, we just need to keep that up. And in three or four months' time, if Republicans have done this, I think Joe Biden will be there at the end of the day.

MELBER: Very interesting.

And take your point. I think folks are familiar with the idea that the nominee is who you push, just like the platform.

Brian Fallon, who's got millions of dollars behind him, a key player in this court fight, thanks for jumping on the phone.

And thank you, as always, at home for watching us here on THE BEAT WITH ARI MELBER.

I will see you tomorrow at 6:00 p.m. Eastern.

Right now, it's "THE REIDOUT WITH JOY REID."


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