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Transcript: The Rachel Maddow Show, September 18, 2020

Guests: Hillary Clinton, Trevor Morrison, Nina Totenberg, Amy Klobuchar, Dahlia Lithwick, Linda Greenhouse, Cory Booker, Sherrilyn Ifill, Mazie Hirono, Nancy Northup

Summary

Supreme Court Justice Ruth Bader Ginsburg dies at 87. Coverage of the national reaction to the death of Supreme Court Justice Ruth Bader Ginsburg who has died tonight from complications of pancreatic cancer at the age of 87. Cannot be seen to be a surprised that she has died given all the health challenges that she has had and given her advanced age. But it is a shockwave across this country for a lot of different reasons that she is gone tonight.

Transcript

CHRIS HAYES, MSNBC HOST, "ALL IN": Vanita Gupta and Rebecca Traister, you are both joining us on a short notice on an extremely sad, shocking, difficult, head-spinning night, thank you both for doing us. I really, really appreciate it from the bottom of my heart.

That is "ALL IN" for this evening.

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Chris, I've been watching you all hour talking to other people about what they think about this, and about what they think is going to happen next.

As you were handing off to me, I am absolutely compelled, it is beyond my means to not ask you what you think and what do you think will happen next.

HAYES: I don't -- I think it is what Vanita was saying is correct. I don't think -- he obvious -- I don't think McConnell obviously can hold the caucus together for a vote in the next 45 days. I do not think that's a fait accompli. I think Murkowski was sending a very clear signal, and I think Collins does not want to do that. I think it would spell the probably the end of her political career which is already there.

With Cory Gardner, Martha McSally, I think there's a little bit of different calculations but I think they think they're dead anyway, and McConnell will take their votes.

So, there's two chapters to think about does it happen in the next days and does it happen the lame duck. I don't know that they can get it done in the next 45 days, a confirmation the lame duck after Donald Trump loses would be one of the most sort of ghastly assaults on sort of legitimacy and democracy I can imagine, but also completely within McConnell's ability. So that's -- that's where I am right now.

But I don't think -- I think the future is unwritten and anyone who tells you they know what's going to happen is wrong. We're in utterly uncharted territory.

MADDOW: Yes, we have been in uncharted territory since Justice Scalia died in February of 2016, and the Republicans reacted the way they did to that, and that broke everything in terms of the way these things work.

And so, I think -- I think that humility that you just expressed there in terms of this future being unwritten is -- that's the smartest thing I've heard anybody say about this tonight and I think that's absolutely true.

Well, you did an amazing job handling this as breaking news. It's such a sad night. Thanks, Chris.

HAYES: Thank you so much.

MADDOW: All right. We are continuing to follow the late breaking news tonight that Supreme Court Justice Ruth Bader Ginsburg has left us at the age of 87. We have a lot to get to tonight. We're going to talk about the course of her life and her career. We're going to talk with a number of people who covered her careers, more than -- more than 40 years as a judge and a justice who know about her impact on the law.

We're going to talk about the striking news that in her last days on earth, she dictated a statement to her granddaughter saying that it was her fervent wish that she not be replaced until there is a new president. We're going to talk about all of that tonight.

But we are going to speak first with someone who may have asked to join us on very short notice and I'm very grateful she has been able to get to us -- former Secretary of State Hillary Clinton, former U.S. presidential candidate.

Secretary Clinton, I know this is a very tough night and I know this is very short notice. Thank you for being here

HILLARY CLINTON, FORMER SECRETARY OF STATE (via telephone): Oh, thank you. Thank you, Rachel.

It's a really sad night, and I know it's sad for people who followed Justice Ginsburg, but I hope every American knows that she was historic, courageous person who moved our country forward in all the right ways.

MADDOW: When it came to choice to put her at the Supreme Court, there's been so much good storytelling around that decision in your husband's presidency in 1993 to elevate her.

She's been on the D.C. Circuit Court of Appeals. She's put there by Jimmy Carter. She was 13 years into that tenure.

She was not expected to be a front runner for the Supreme Court seat until she had her -- her interview at the White House, whereupon she apparently hit it out of the park and there was no chance that she was not going to get that seat. She went on to be confirmed by an overwhelming margin, over 90 seat -- over 90 votes to put her on the court.

Can you talk a little bit about the importance of her getting that seat, only the second woman ever to get a Supreme Court justice -- to become a Supreme Court justice at the time she was appointed?

CLINTON: Well, I had known Ruth for a number of years, going back into the 1980s. But more than knowing her from afar and admiring her personally, I knew of her work.

And so, when the opening occurred and everyone was making their list, I said to my husband, someone you should definitely look at is Judge Ruth Bader Ginsburg.

And, of course, he heard of her. He met her casually, but it was exactly as you described it. I was quite enthusiastic about her potential nomination.

I thought that she was a historic figure. She made a huge difference in the law, first as a lawyer, then on the circuit court. And when she came to be interviewed, she was told that it would be kind of a casual interview on a Sunday afternoon to not let anybody know because those things have to be kind of kept close -- hold until the decision is made.

And when she came in, Bill knew that she was coming, so he got out of his sort of the Sunday football watching clothes and put on a suit and tie, and she came in very casually dressed. At first, she was a little embarrassed about, you know, coming to the White House and seeing the president when she was not properly attired, but they just hit it off.

And they had an extraordinary conversation. Bill had taught constitutional law years before, and they just dove into the Constitution and to, you know, the role of the court in a way that I wish could have been seen by the entire country. It was a master class.

MADDOW: We're showing some pictures right now on the screen of you and Justice Ginsburg together.

There was around the time of the Merrick Garland nomination, after Justice Scalia died, who, of course, was Justice Ginsburg's very close on the court, despite their ideological distance, they shared a love of opera, and they got along and they enjoyed dissenting against each other's opinions. When Justice Scalia died, and the Republicans made that decision that they would allow President Obama's nominee to even be considered in the Senate and that is how after that election landed (ph) in 2016, your election ended up with Justice Gorsuch instead of Justice Merrick Garland.

I think a lot of the emotion around that in the country was in part that the Republicans and Mitch McConnell had done something that really did feel like it broke the system, that really did feel like just a small D, anti-democratic assault on the process.

But it also felt like a feminist catastrophe and -- and you not becoming the first woman president, despite Justice Ginsburg's fervent belief that you would be. That was part of how she explained that she didn't retire during the Obama years. But also then for that Supreme Court seat to go and for the court to go that much further to the right, and then for us all to be praying for Justice Ginsburg's health in the way we had before because of the balance of the court.

It all just feels mixed together with so much emotions beyond the politics here.

I have to ask if you feel any of that yourself or if you're too close to it to see it in some other way that all of us feel it?

CLINTON: No, I'm devastated by this, Rachel. Just losing her is such a massive hole in -- you know, my -- you know, young adulthood, my becoming a lawyer, both practicing and teaching law, looking up to her and following her career. But much more than that, it is such a devastating loss for justice and equality.

What -- what Ruth Bader Ginsburg did was to make it abundantly clear that the Constitution had to explicitly, wherever possible, be interpreted as providing for the equal rights of men and women. She was extremely clever in the way she began her litigation march because she brought cases on behalf of men. She understood that, you know, there were certain assumptions in the law that favored or disfavored men, as well as women, and she had the brilliant insights that she could demonstrate the lack of equality under law for women by litigating on behalf of men.

I'm not sure many other people would have ever really understood that.

And now with her loss, it is not only a personal loss, but it's a real threat to the steady march toward progress that we need continue. This is the 100th year of the anniversary of women getting the right to vote. It took, you know, many more years before there were legislatives protections for women of color, and we're still fighting those battles.

And Ruth understood this. You know, her great gift was not only as a brilliant lawyer and litigator and judge, but she was such a warm and understanding human being, and she really felt the loss of respect and rights that not just her clients but women and really anyone who appeared before her in any form could feel that she felt compelled to try to remedy.

I want to say a quick work about your reference to what happened when Justice Scalia died. And, of course, he and Ruth were great friends. And, you know, people talked about Justice Scalia being an originalist. He was someone who was always trying to figure out what the Founders thought.

I often, you know, wondered during that time when Mitch McConnell was truly wreaking havoc on our Senate and our norms, our values, and I would argue on the underlying original intent of the Constitution and the Founders, that presidents have a right to appoint judges to fill vacancies, and Mitch McConnell denied Barack Obama that right.

And that set in motion a series of event that I think did great damage to the Senate that can only be remedied by removing Mitch McConnell as the leader of the Senate. That has to happen in this election by getting a Democratic Senate majority.

But in the meantime, the Democrats who are in the Senate will have to use every single possible maneuver that is available to them to make it clear that they are not going to permit Mitch McConnell to enact the greatest travesty, the monumental hypocrisy that would arise from him attempting to fill this position.

So, in many ways, I think it's -- you know, a terrible loss for us all. But it's also a reminder that, you know, she stood on the side of moving us towards a perfect union and really underscoring equality, not just for women but for every American. And I don't want to see that legacy ripped up by political hypocrisy coming from Mitch McConnell.

MADDOW: You described that as -- Madam Secretary, as monumental hypocrisy, if they -- you know, with 11 months left in President Obama's term decided that that president was not allowed to put somebody else on to Supreme Court, that they would with four months left in this presidential term nevertheless try to get through a Trump nominee before this election, or even in the lame duck.

I wonder if I could just ask you more specifically what you think can be done to try to stop that?

When we saw what happened with the Merrick Garland decision, the Merrick Garland nomination by President Obama and Republicans refusing to act on it, holding that seat open for more than 400 days, it was the longest the Supreme Court's seat have been held open since the 1860s, obviously, the Obama administration, President Obama himself, Vice President Biden at the time, they were incredibly outspoken about how outrageous that was and how much they were against that, but they essentially were -- were powerless to stop McConnell from doing what he wanted to do.

In the ensuing four years, have you had any further thoughts about what else could be done, about whether or not Democrats or Republicans who feel like institutionalists here, what they could do if McConnell is hell-bent on filling the seat, which the statement he put out tonight suggests that he is?

CLINTON: Well, you know, Mitch McConnell cares only about one thing and that's power. He cares about literally nothing else. And, of course, he's going to do everything he can to fill that seat.

I think there are three possible approaches that should be considered. I think there will be at least one, may be more, Republican senators who either from principles and conscience or political calculation find the hypocrisy to be more than they can bear. And, it's reported -- and I don't know if it's actually accurate yet, but it's been reported that at least one senator has said just that, that fair is fair.

And I think it's -- to me, if we have any hope of overcoming the divisiveness and the absolute poisonous atmosphere that currently infect our politics and, unfortunately, has riddled our institutions like the Senate with this kind of, you know, power over everything else, mentality, I hope that there will be several Republican senators who say, we're going to wait to see what happens with the election, it will be up to whoever is president on January 20th.

The second thing is that there are senators running for office right now who are in -- who are Republicans, who are in closed or contested seats, and their Democratic opponents, as well as, you know, the people in the press in their states need to make this a major issue.

Are they going to totally demonstrate themselves as being without a shred of principle because they went along with McConnell and refusing to move forward President Obama's nomination, are they going to apply a totally double standard here?

Make it a political issue because, you know, these are tough races. You know the states, you covered it, Rachel, and make it real, so that at least you make it painful for a lot of the Republican incumbents.

And, finally, you know, every possible procedural, you know, obstacle has to be thrown in the way of this power drive by McConnell.

There are things that can be done. They need to be done literally 24/7. I'm sure that, you know, Chuck Schumer and his, you know, leadership team is already looking and talking at it.

Having said all that, you know, I understand how I impervious to, you know, reason or principle McConnell is. So, all of these things, you know, may -- you know, be difficult. But let's go down fighting, and let's -- you know, not give an inch in the face of the kind of hypocrisy that, you know, met President Obama when he tried to fulfill his constitutional obligation and to appoint Merrick Garland to the court

MADDOW: One last question for you, Secretary Clinton, along those lines, and on the second point that you're making about the political pain and making that real here.

A lot of people have said that the Republicans -- and particularly, the conservative movement -- have made the Supreme Court a voting issue for at least time of their base, and that Republicans, not necessarily more conservative or more moderate Republicans but a slice of the Republican voting base does vote on the base of prioritizing the Supreme Court and Supreme Court appointments. And that while it is on the Democratic side an issue that's of concern to some activists and some donors, it's not necessarily that's something that the Democratic Party has figured out how to turn into a motivating factor when it comes to presidential elections, or when it comes to Senate elections.

Do you think the Democratic Party can get better on that? I mean, we're 46 days away from this election, more than half a dozen states are already doing in-person early voting as of today. Is this something that the Democrats can make a centerpiece of the contest between Biden and Trump for the fall?

CLINTON: Well, I certainly hope so, Rachel. And it is worth every ounce of energy to try. You know, during the 2016 campaign, I raised it numerous times. I went to Madison, Wisconsin, and gave a -- what I thought of as an incredibly urgent speech about the future of the courts.

And you're right. It is difficult to turn that into a voting issue on our side of the political ledger. I -- I know that from firsthand experience.

But this is a different set-up. I mean, people's attention is really focused on this election unlike anything I've ever seen, and let's hope that it drives the biggest turnout we've ever had in our country.

And so, I think the Democratic candidates led by Joe Biden and Kamala Harris can make this a voting issue because it is such a clear choice. And the comparison with what McConnell did, how he disrupted, really demean, held in contempt the Constitution and the -- you know, the principles and practices of the Senate, should give everybody some great talking points and the energy to deliver them in a -- you know, urgent, fierce way.

Because when it all comes down to it, how are we going to get the country back on the right track, even far beyond politics and elections, if we allow people who care only about power, not principle, not practicality, not evidence, not the future of the country, but only about power, to make the decisions that do not have the support of the majority of our country?

And the only way to do that is to do everything possible to stall and stop whatever McConnell pulls out of his hat to try to push this forward, to have an overwhelming Democratic victory from, you know, the top to the bottom of the ballot, and then basically just prevent the Republican lame duck sessions from doing anything in the face of an overwhelming Democratic majority victory.

So, you know, let's take it seriously and let everybody get to work to come up with the best tactics and strategies we can possibly deploy to make it clear to the country that it's not just, you know, women's equality, it is everything on the line. It is voting. It is corporate power.

It is -- you go down the list -- everything that we care about on our side of the political divide is at stake in this election and the court is now at the top of the list.

MADDOW: Former secretary of the state, former U.S. senator, former first lady, former presidential candidate, Hillary Clinton, Secretary Clinton, it's a real honor to have you with us on this night of all nights. Thank you for making time. I really appreciate you being here.

CLINTON: Thanks, Rachel. Bye.

MADDOW: Bye.

Secretary Clinton joining us by phone tonight, as we absorb the news that Supreme Court Justice Ruth Bader Ginsburg has died at the age of 87.

I will just underscore what Secretary Clinton said there in terms of what she believes should happen in terms of trying to hold the Republicans to the same standard that they applied when Justice Scalia died in 2016, 11 months before the end of a presidential term. They held that seat open for 400-plus days and would not allow President Obama's nominee to be considered. They said it had to wait until after the election.

That is how we got Justice Gorsuch rather than President Obama's nominee Merrick Garland on the court in 2016. Talking about the Republicans having done that with the last Supreme Court vacancy, Hillary Clinton telling me tonight just moments ago that every possible procedural obstacle must be thrown in the way of this power grab by Mitch McConnell, also expressing some optimism that there may be enough Republicans who can't stomach the hypocrisy of moving ahead with adding another Trump nominee to this court after what happened during the last presidential election year.

Here's one way to think about the breadth and the scope of Ruth Bader Ginsburg's life. She was born in 1933. She was born March 15, 1933, just a few days after FDR became president for the first time.

She was nominated to a federal court in by President Jimmy Carter. She was nominated to the United States Supreme Court in 1993 by President Bill Clinton. She eventually became a pop culture touchstone and phenomenon Notorious RBG under Presidents Obama and Trump. It was a very long life that saw many changes in the country.

Ruth Bader Ginsburg herself was a force behind many of those changes. After she graduated law school, she was actually rejected for a Supreme Court clerkship specifically because of her gender. She embarked on a pioneering legal career advocating for women's legal rights and equality. She became the first female tenured professor at Columbia Law School. She founded the women's rights project at the ACLU. As a lawyer, she wrote her first brief for the Supreme Court in 1971.

Two years before I was born, she successfully convinced that court for the first time to strike down a state law because it discriminated based on gender. Ruth Bader Ginsburg went on to successfully argue a string of cases before the Supreme Court that made it easier to sue for sex discrimination. She once told NPR that the words of the 14th Amendment's equal protection clause nor shall any state deny to any person the equal protection of the laws.

Well, that word "any person" covers women as well as men, and the Supreme Court she said woke up to that reality in 1971, in the case that she argued there and won.

As NPR legal affairs correspondent Nina Totenberg wrote tonight upon learning of the passing of Justice Ginsburg, she said, quote, when Ginsburg began her legal crusade, women were treated by law differently from men, hundreds of state and federal laws restricted what women could do, barring them from jobs, rights and even from jury service.

By the time she donned judicial robes, however, Ginsburg had worked a revolution. After the nomination to the Supreme Court from President Clinton, we just heard from former Secretary of State Hillary Clinton that she put a bug in her husband's ear about the prospects for a Justice Ginsburg when he was considering nominees that year. She was confirmed to the Supreme Court in 1993 -- do you know what the confirmation vote was for her? Do you know what the vote was in the Senate? It was 96 to 3. We haven't done that in a long time.

She was the second woman ever confirmed to the court, a reliably liberal voice on the court and a strong one. Particularly in her later years, she became known for her fiery dissents as the court turned further and further to the right.

In 2013, when the Roberts court gutted the Voting Rights Act on Chief Justice John Roberts' contention that times have changed and the Voting Rights Act was no longer needed, Ginsburg famously wrote -- you will remember this -- in her dissent that throwing out that law when it has worked and is continuing to work is like throwing away your umbrella in a rainstorm because you're not getting wet.

NPR's Nina Totenberg, also a personal friend of Justice Ginsburg's reports that her -- the justice viewed her dissents as a chance to persuade a future court. She told NPR, quote, some of my favorite opinions are dissents. I will not live to see what becomes of them but I remain hopeful.

Justice Ginsburg was a passionate opera fan. She even appeared in at least one Washington opera production. It was a silent role but she was known to enjoy opera with the court's late conservative icon Antonin Scalia. Despite being on opposite ideological side of the courts, they were close friends.

In recent years, part of Justice Ginsburg's stature as an inspirational figure came from her dogged perseverance and her work ethic. Her husband Marty, her beloved husband Marty died at home in 2010. The day after he died, Justice Ginsburg was back at the court on the bench, reading an important opinion that she had authored for the court. She said that that's what Marty would have wanted.

Justice Ginsburg served through three surgeries for different kinds of cancer, colon cancer, pancreatic cancer, lung cancer. Doctors also recently inserted a stent and a heart artery when they discovered a blockage. Even through a recurrence of cancer and new rounds of treatments in hospital stays, she almost never missed a day of work. It cannot be said that it is surprising that a woman who's been through all of that and was you know the size of a hummingbird, has died tonight at the age of 87.

But part of not the surprise but the shock and disbelief among her friends and the -- it was more than clerks that she had of her time on the bench and her many admirers all over the country, part of the shock tonight is that in a certain way with everything she had been through, she felt like the rock of Gibraltar. You know, she felt invincible. She'd been through so much. She was doing the best she could as much as she could for as long as she could.

Joining us now is Trevor Morrison who clerked for Justice Ginsburg in 2002 and 2003. He's currently dean of the NYU Law School.

Trevor -- Mr. Morrison, it's really nice to see you tonight. Thanks for making time. It's such a sad night.

TREVOR MORRISON, FORMER CLERK FOR JUSTICE RUTH BADER GINSBURG: Good to see you, Rachel. I'm sorry it's under these circumstances.

MADDOW: Absolutely. Let me just ask what it was like clerking for her I know a lot of people who have clerked for lots of different judges, including for Supreme Court justices.. What was it like being a clerk to Ruth Bader Ginsburg?

MORRISON: Well, it was a tremendous honor and as you mentioned she had many, many clerks over the years. And we all felt like part of an extended family, having been all honored to have the incredible experience of working for Justice Ginsburg.

She set the highest possible standards in terms of her dedication to the law and to getting things right in the decisions that the court was making and so she really provided a role model for all of us in terms of professional excellence and dedication to the rule of law and core principles of equality and liberty and justice. She was at the same time a tremendously warm person. She was soft-spoken, not an extrovert in the long-running and wonderful marriage with her husband Marty. He was the extrovert and she was the quieter one.

But she really cared very deeply for all of us clerks and our families. I had a young daughter the year that I was clerking for her and she became part of that extended family as well. And when another daughter was born several years later, several years after I had clerked, the justice sent in the mail a little shirt that said RBG grand clerk. She would send those to every clerk when she (AUDIO GAP).

That kind of reflected the warmth and the really sort of feeling of extended family that that was what it meant to be a clerk to the justice.

MADDOW: She had -- I think the count is law clerks over all the years that she was on the bench, both in the D.C. circuit and the U.S. Supreme Court, that's a large community and that attention to that community that you just described the grand clerk onesey is a great story.

I wonder though for those of you in that community, for you personally, somebody who had a role in crafting her opinions and doing her research and doing all that, that very close work with the justice that you do is that in that in that unique circumstance of being somebody's clerk, what have you made over the years about this sort of folklore around her, right, her as Notorious RBG, her as not just a justice of the Supreme Court but as an icon.

I'm thinking of that as we've been showing these images, Trevor, since you've been talking with us of the people who are gathering tonight at the Supreme Court just having heard the news of her passing. I wonder how that matches up your personal experience of her and this larger than life persona that was built up around her.

MORRISON: Yeah, well, I clerked for her in 2002 to 2003, and at that point, she had already been for many years a hero to millions of people in this country and indeed around the world. As a law student and young lawyer, I revered her and regarded her as a true hero.

And so, that was already true and seemed entirely warranted and in keeping with the massive impact. She had already had on the law at that point.

But I have to tell you, if you told me in that a decade or so later, she would become known as Notorious RBG, I would not have believed that. It was really quite something this cultural folk hero that she became in more recent years.

But I think part of the effect of that is that she became such a resident figure to new generations of young people. My oldest daughter is 19. And met Justice Ginsburg and knew her and Justice Ginsburg really cared for her, and I think was a justice was a true hero to both of my daughters in a way that maybe wouldn't have been quite true in the same way if this larger cultural figure hadn't emerged.

It's one that she embraced. I think she really got a kick out of this idea that she was a Notorious RBG, she said that the original Notorious BIG, and she both shared the fact that they're originally from Brooklyn.

MADDOW: Trevor Morrison, who clerked for Justice Ginsburg in 2002 and 2003, and went on to make good on his own terms now as the dean of NYU's esteemed law school -- Trevor, thank you so much for being with us. I know it's a really difficult night for you and all your fellow co-clerks who serve Justice Ginsburg. Thanks for being here.

MORRISON: Thank you.

MADDOW: As I mentioned, we've been watching scenes tonight of the United States Supreme Court building in Washington where people are convening tonight spontaneously having heard the news about Justice Ginsburg's passing, stuff like that doesn't happen very often in U.S. politics. But that's a live shot tonight.

Joining us now is Nina Totenberg, long long-time legal affairs correspondent for NPR. Nina not only covered Justice Ginsburg over the long arc of her career on the court, but was also a friend to the justice.

Nina, first of all, thank you so much for making time. I know that you knew that you'd get these calls to talk on the night that Justice Ginsburg finally passed, but I can't imagine it's easy.

NINA TOTENBERG, NATIONAL PUBLIC RADIO LEGAL AFFAIRS CORRESPONDENT: No, it's not easy and we were actually over there today and she was still alive to just bring some food. But I knew this day was coming for I would say a couple of weeks but only a couple of weeks at the most. She was ferocious. I mean, she just was not giving up.

If she could have lasted longer, she would have lasted longer. She really, you know, she dictated this note to her granddaughter Clara just a few days before she died as she was getting weaker. She said, my most fervent wish is that the -- I'm paraphrasing here, I don't have it right in front of me -- that my position --

MADDOW: Right in front of me, I can read it to you. My most fervent wish is that I will not be replaced until a new president is installed. Sorry, I want to make sure we got that. It's your quote, you were the one to report it, yes.

TOTENBERG: Yes, and that's -- you know, she was first and foremost in the end of her life devoted to the court and she fought very hard not to have it politicized. She disappointed progressives when she said that the idea of adding justices to make up for some Republican shenanigans in in terms of what progressives deemed to be packing the court. She thought that was a very bad idea and that all that meant, all that would do is mean that the court would just keep flipping depending on who at the moment was in power, and that's not her idea of a Supreme Court.

So I think she really did want to last until this election was over and the next president, whether it was Donald Trump or Joe Biden was installed. I don't think there's much doubt about who her preference was, but it was important to her that it not come at the last minute. And, of course, there's going to be a monumental fight over this.

The Republican majority leader has already said there will be a vote on the Senate floor on her successor, and we don't know who that successor might be from President Trump and we don't even know how this is going to play out politically. You can certainly make an argument that it will serve Republicans to energize their base, but it could serve Democrats to energize theirs too.

So it's going to be a difficult vote I think for some Republicans who have heartfelt -- hard-fought campaigns at the moment, and it's going to be very interesting.

MADDOW: We have -- on that point, we do have some reporting tonight about some statements by senators, in terms of whether or not, they are going to be willing to entertain a Trump nominee or whether they are going to try to hold to the same standard that held in 2016 when the Republicans wouldn't allow for President Obama's nominee to be considered.

A lot of people are circulating tonight the quote from Lindsey Graham from 2018, in October 2018, he said, quote, if an opening comes in the last year of President Trump's term and the primary process has started, we will -- we will wait until the next election and I will likely be the judiciary chairman then. Hold the tape, meaning hold me to this.

Jonathan Martin from "The Times" reporting that Susan Collins this past month told him that she would not vote to seat a Supreme Court justice in October. I think that's too close, she said.

We've also seen Senator Lisa Murkowski and even Senator Chuck Grassley who was until recently the chair of the Judiciary Committee say that they did not believe that the party's 2016 standard should be violated by approaching this in a different way. That -- you know, gets you -- that gets you to four Republican senators if, in fact, they hold to those lines.

But I imagine that -- I guess the way I see this is that once the heat is brought to bear on them, I don't expect many of them to stand up to it, how do you think it will -- how do you think it will play out?

TOTENBERG: Like you, I tend to think that what we've seen from Republicans is that they're they need Trump as much as he needs them and therefore, I'm -- well, I'm not sure but I'm not optimistic that what she wanted, her fervent wish will in fact take place. But you never know, you really never know.

I mean, I've been surprised before. I didn't actually think that Senator McConnell would be able to hold the line against even having hearings for President Obama's nominee for 10 months, but he did and I was surprised by that.

So I don't -- I don't want to make any wild prognostications here. She had hoped to retire in 2016. She had hoped that she was going to retire and be re -- and have the first female president nominate her successor, but that didn't turn out to be the -- that wasn't the deck of cards she got dealt.

And it is -- and as a result, as I've said a couple of times already today, in the years -- I would say over the years, even going back to the early 2000s after her colon cancer, she -- you know, she could teach an NFL defensive end a lot about playing hurt -- broken ribs, you know, five bouts with different cancers at different times, chemo, radiation, shingles, you name it, she endured it, without complaint.

And, you know, you only if you knew her really well. I remember I was interviewing her once and I had no idea that she was going to have lung cancer surgery that week, and I was interviewing her in New York and I looked into her eyes and she looked so tired. I thought to myself, this is not supposed to be a long interview, I'm even going to cut it shorter, this woman needs to go home and get some rest.

I had no idea what was going on and -- you know, she was just -- she taught me a lot about how to live. You know, all these people who say she was very quiet, for example. She was very quiet and very shy unless she was on the stage, whether she was giving a speech or going for an interview with President Clinton.

I remember her aide saying to me -- she he fell for her hook, line and sinker. She understood how to perform when she needed to perform and that was true whether she was announcing an opinion for the court the day after her husband died or whether she was announcing a dissent in something she felt incredibly passionately about, or whether she was giving a speech to a very to a small group of school children, she was a performer.

MADDOW: Nina Totenberg, a long time legal affairs correspondent for National Public Radio, a friend of Justice Ginsburg, somebody who covered her over the long arc of her career -- Nina, it's an honor to have you with us tonight. Thank you for making time to be here. I really -- I really appreciate it.

TOTENBERG: Thank you for having me. I hope --

MADDOW: We're going to go now -- we're going to go now live to Delaware where Vice President Joe Biden is making a statement in reaction to Justice Ginsburg's death time.

JOE BIDEN (D), PRESIDENTIAL NOMINEE: -- her at the time, and she -- and her ascension to the Supreme Court.

The decades since, she has been absolutely, consistently reliable and a voice for -- for freedom and opportunity for everyone. And, you know, and she never failed she was fierce and unflinching in her pursuit of the civil and legal rights of -- civil rights of everyone.

Her opinions and her dissent are going to continue to shape the basis for a law for a generation. And, you know, tonight and in the coming days, we should focus on the loss of her -- the justice and her enduring legacy.

But there is no doubt, let me be clear, that the voters should pick the president and the president should pick the justice for the Senate to consider.

This was the position of the Republican Senate took in 2016, when there were almost 10 months to go before the election. That's the position the United States Senate must take today and the election is only 46 days off. I think the fastest justice ever confirmed was 47 days and the average is closer to 70 days.

And so, I should do this with full consideration and -- and that is my hope and expectation what will happen.

Thank you all and I'm sorry -- such a -- we had to learn it on the plane ride, but thank you very much.

MADDOW: Vice President Joe Biden speaking live tonight in Wilmington, Delaware, saying he just learned of the death of Ruth Bader Ginsburg on a plane ride back to Delaware.

If we can -- I'm just going to ask the control room here -- if we can just turn around, I just want to make sure I get it exactly right, the verbatim remarks that that Joe Biden made at the end there about voters picking the president and the president picking the Supreme Court nominee.

So, I just want to make sure that I get that exactly because I think that will end up being determinative and an important touchstone in terms of how Democrats approach what will now be a central issue for the election and for everything that happens in the country over the next 50 days in terms of how this is handled.

We've been covering over the course of tonight not only the sadness and the grief over the loss of Justice Ginsburg, and I've seen these remarkable photos of people just spontaneously turning up at the United States Supreme Court tonight to mourn her passing. We don't have that many physical touchstones that draw people out in American political life. I think of people convening for example at the White House the night that President Obama announced that Osama bin Laden had been killed. I was in Washington that night went over to the White House and saw those remarkable scenes.

There aren't very many other occasions on which something like that happens, but to see people convening tonight at the Supreme Court in person tells you something about the reverence for Justice Ginsburg but also about the importance of this moment, 46 days out from the election, Justice Ginsburg's seat, of course, is now open and it is a president who has to nominate somebody to fill a Supreme Court vacancy, but looms over this though is the decision made in February of when Justice Antonin Scalia, the conservative -- leading light of the conservative wing of the court died unexpectedly at a ranch in Texas.

And immediately, even though there were 11 months left of the term of President Obama at the time, 11 months left, it was February of 2016, Republicans announced that night that they would not consider any nominee put forward by President Obama and instead they would hold that seat open ultimately for more than 400 days, something that had not been done since the 1860s, since the Civil War era. They did not allow any process whatsoever around President Obama's nominee and instead held that seat open until after the election.

At the election, of course, President Trump was elected and in January of 2017, Merrick Garland's nomination for the court expired with the end of that previous Congress when the new Congress was constituted, President Trump nominated Neil Gorsuch and that gambit around Scalia's seat worked for the Republicans now, with only four months left, not 11 months, but four months left in this term for President Trump.

The Republican leader, Mitch McConnell has already said that there will be a vote on President Trump's nominee for this seat despite the precedent he himself set four years ago. There are a number of Republican incumbent senators for whom that hypocrisy will be a choking hazard in terms of their own voters, their own reelection hopes, and their own reputations.

Lindsey Graham, for example, the senator from South Carolina, who's up and is facing the hardest re-election battle of his life right now, he said in 2018, having gone along with what Mitch McConnell did in 2016, that if there was a vacancy on the Supreme Court in the last year of President Trump's term, that they would wait -- he would wait --he would insist that they wait until after the election for any nominee to be considered. He said at the time that he would likely be the Judiciary Committee chairman if that happened and in fact he is.

If he is going to eat those words now and just say, oh, forget it, I'm after raw power and I never had any principles here in the beginning -- or to begin with, I mean, maybe that's what politicians professionally do, but politicians have a harder time doing that when they're facing a well-funded, very well-skilled incumbent who's now pulling even with incumbent Senator Lindsey Graham in South Carolina.

You guys to the control room just sent me -- yes, this is the -- I just wanted to get this exactly, we just heard again remarks from Vice President Biden. Do you guys have this as tape or do I just have the written verbatim of this?

Okay, I'm just going to -- let's just re-rack this and play it then. This was the end of Joe Biden's remarks just a moment ago, his reaction to Justice Ginsburg's passing and also what he said should happen with regard to her seat. Watch.

(BEGIN VIDEO CLIP)

BIDEN: Let me be clear: that the voters should pick the president and the president should pick the justice for the Senate to consider. This was the position of the Republican Senate took in 2016 when there were almost 10 months to go before the election. That's the position the United States Senate must take today and the election is only 46 days off.

I think the fastest justice ever confirmed was 47 days, and the average is closer to 70 days.

And so, I should do this with full consideration and that is my hope and expectation what will happen.

Thank you all and I'm sorry -- such a -- we had to learn it on the plane ride, but thank you very much.

(END VIDEO CLIP)

MADDOW: Vice President Biden, the Democratic nominee for president running against President Trump right now, saying that the voters picked the president and the president should pick the justice for the Senate to consider, saying that the Republicans in the Senate in 2016 took that position, with almost 10 months to go until an election and that's the position the United States Senate must take today.

The question of whether or not the Republican leader of the Senate Mitch McConnell will act hypocritically here and insist on President Trump's nominee being heard, even though President Obama's nominee could not be heard under Mitch McConnell. That issue of Senator McConnell's hypocrisy is settled. He has already said gleefully in public before this ever happened that, of course, he would move to fill a vacancy on the Supreme Court in an election year with President Trump in office.

Now, that Justice Ginsburg has passed, he's put out a written statement affirming that in fact he will -- he will move to fill the seat. And he said, in fact, in his statement, tonight, that there will be a vote on the floor. It's not at all clear that enough of his Republican colleagues agree with him to make that happen but that seems to be the plan.

I want to bring now into the conversation somebody who's going to have a key role in how this happens moving forward and that's Senator Amy Klobuchar of Minnesota. She's a key member of the Senate Judiciary Committee, herself was a candidate for president this year.

Senator Klobuchar, it's always nice to have you here. I'm sorry it's under such that circumstances tonight.

SEN. AMY KLOBUCHAR (D-MN) (via telephone): Well, thank you, Rachel, and, of course, we mourn the loss of Justice Ginsburg. She was this icon and you see these women and people showing up at the Supreme Court today because they loved her and it's pretty hard to become a rock star in your 80s, but she did with -- you know, her famous name the Notorious RBG and then her famous work from being one of the first women to take on sex discrimination and with landmark decisions because she argued before the Supreme Court and then she herself became the second woman to be appointed to the Supreme Court, where she, of course, continued her fight for justice.

And she's someone that made justice cool for so many young people in this country, and we all mourn her loss.

MADDOW: The passing of Justice Ginsburg is feels like a moment in American women's history, as much as it feels like a moment in American history and obviously it's an incredibly important political moment just because of its timing but also because a vacancy in the Supreme Court is always a huge deal, particularly in a country that's as polarized and is sort of poised on the edge of the abyss as this one sort of feels like it is.

But I spoke with Secretary Clinton earlier this hour about how Justice Ginsburg dying tonight feels very much intertwined with her hope that Nina Totenberg had just described this moments ago, that that she would be able to retire in 2016 because Justice Ginsburg hoped and believed that Hillary Clinton would win the 2016 election and she wanted the first woman president to pick her successor. It comes a day after yet another woman has come forward and accused the sitting president of the United States of sexual assault. It comes at a time when the first woman of color to be on this ticket as a vice presidential nominee Kamala Harris is up against President Trump and Vice President Mike Pence.

It does feel like this is kind of a feminist crucible, this moment in history and I think it's causing a lot of not just -- not just reaction but feelings among American women tonight in terms of what this means. I don't -- I just want to ask if any of that resonates with you?

KLOBUCHAR: Yes, and I'd add one more thing to that list. It comes at a time where women are voting like never before, where Joe Biden is winning in a number of states that I don't think people expected him to be heading, in states like North Carolina and Nevada and Arizona, in addition to the Midwest, where he's getting stronger and stronger in my state. He was just there today, incredible lead in the polls.

And to me that shows us one thing, that people are voting. They are getting out there, and this will bring them out in an unbelievable way in Justice Ginsburg's honor.

And another thing I would add about her that, I'm not sure people have touched on, maybe Nina did, the way she had friendships with people who had very different views than her on the court like Justice Scalia.

She was someone that believed in the institution of the court and in this process and in fairness. And I think for that reason alone, we should honor her what she called her fervent wish, is that she will not be replaced until a new president is installed.

And I thought it was interesting today when Leader Schumer came out very strongly, just using the quote from Mitch McConnell, that's all he sent out in addition to a tribute to Justice Ginsburg. And this was Mitch McConnell's words.

The American people should have a voice in the election of their next Supreme Court justice. These were his words from back, as you noted, in 2016. Therefore, this vacancy should not be filled until we have a new president.

You already see Republican senators like Lisa Murkowski coming out and saying the same thing. So I, regardless of what Mitch McConnell says tonight, Rachel, each and every Republican senator is going to have to look into their soul and look at the words that they said back then.

So I have today come to honor Ruth Bader Ginsburg and what she stands for. But what she stood was for justice and justice means allowing the American people to have a voice when they choose the next American president.

MADDOW: Senator Klobuchar, on the Judiciary Committee, the Republican senator now is Senator Lindsey Graham. He said in October 3rd, 2018, if an opening comes up in the last year of President Trump's term and the primary process has started, meaning the presidential primary process, we will wait until the next election, and I've got a pretty good chance of being a judiciary chairman at that time, hold the tape.

That's Senator Graham, now Chairman Graham, promising in October 2018 that if this happened in 2020, which is now, that we will wait until the next election until considering a new Supreme Court nominee.

Do you expect that Senator Graham will know that we held the tape and will hold himself to the standard that he's articulated?

KLOBUCHAR: I think this is a major watershed moment in a time where people have lost trust in their elected officials. He better be true to his word.

And I think all of America is watching right now and people remember this well when Mitch McConnell said to wait for the results of an election -- well, this is even closer. That was ten months. We have 46 days before this election.

And I just -- to me, this is going to be a moment. It's not just what Mitch McConnell says in a statement or a tweet. It is what the American people say, and each one of our colleagues is going to have to make a moral reckoning with their words from the past on what they're going to do.

And I hope they think very carefully before they speak because they all, a number of them, really base their decision on the allowing the American people to have a voice, which is exactly what we want to do

MADDOW: Senator Klobuchar, the experience with Merrick Garland -- actually, I note these are remarkable images we got on the screen right now. We had to pull our camera back I believe in order to encompass more of the crowd that has convened on the steps of the Supreme Court in Washington.

Spontaneously, people turning out to be there while hearing this news it is just a remarkable scene.

But let me ask you about the experience of Merrick Garland's nomination being denied and ignored by Republicans in 2016 when Justice Scalia died in February of that year. You and your fellow Democrats, particularly on the Judiciary Committee, do you feel like you learned anything or you had any sort of, you know, spirit of the stairs, regrets about things that you could have done to make that -- to make that happen the way that you wished it had?

Do you have plans for things that you can do to try to stop them filling this seat that maybe you hadn't considered doing four years ago

KLOBUCHAR: Well, first of all, I was there when Merrick Garland was nominated. I was there in the Rose Garden. And it was a beautiful moment. He would have been a great justice.

And, you know, talking about the nuances of senator procedure tonight, I think there will be plenty of that going on. But today is the day we lost Justice Ginsburg and again I think the answer here is in my Republican colleague's statements from the past. The answer here is that Ruth Bader Ginsburg was someone who stood for justice who was friends of Justice Scalia, made her fervent wish, her last wish, her last wish that the next president be able to choose her successor, not that anyone could ever really fill her shoes.

And as I look at those pictures of the people gathering on the court, Rachel, I think about what she stood for. She was a solitary female justice for so long. She was -- no one thought she could succeed in law school, first tenured professor. She went on to then take on those cases, argue before the Supreme Court when people wanted man (ph) to take her place.

And then she ends up on the court and makes that very significant decision in the Virginia military case where she got Republican appointed justices, including Sandra Day O'Connor to join her in the decision that men should not be the only ones admitted to that military academy.

MADDOW: Senator Amy Klobuchar of Minnesota, member of the Senate Judiciary Committee, which is now the center of the political universe and will be for the next however many days before this issue is resolved. Senator Klobuchar, thank you so much for making time on short notice to be with us. It's an honor to have you here tonight.

KLOBUCHAR (via telephone): Well, thank you, Rachel. And thank you for honoring this woman that made you believe anything and everything is possible. And I hope your viewers remember that today, that justice must prevail.

MADDOW: Thank you for putting it that way, senator. Thanks for being with us. Before Justice Ginsburg's passing this evening, and again I will bring your attention to these images, these live images that we've got of the steps of the Supreme Court tonight in Washington as people gather there spontaneously to pay their respects.

And I think to see each other at this time of the pandemic and social distancing and working from home and there not being collective things out in the world where we get together on a big important moment in American history.

I think part of what happens with touchstone places like this is that people like to not only pay their respects but also to see each other and have a sort of communal experience of this moment. And I think that's what we're seeing as much as anything.

But before Justice Ginsburg passed tonight, the last Supreme Court justice to die while he was still a member of the court was Justice Ginsburg's friend, the deeply conservative Justice Antonin Scalia. As we've been talking about tonight, Justice Scalia died unexpectedly in February 2016 at a ranch in Texas where he was on a hunting trip.

And of course because he died in February 2016, that means that Barack Obama was president. The Republicans had control of the Senate, but the Democratic president held the White House.

Within one hour of the announcement of Justice Scalia's passing in February 2016, the Republican leader in the Senate, the majority leader, Senator McConnell, issued this statement. He said, "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president."

Now, in February 2016 there wasn't even a Republican nominee for president. There was no Democratic nominee either. The presidential campaign hadn't gotten nearly that far, but 10 months before the 2016 election.

I mean, 10 months before that election was going to happen, before we had nominees of either party, Senator Mitch McConnell decided that President Obama would not be allowed to perform his constitutional duty and responsibility to replace Justice Scalia on the Supreme Court.

Simply because the calendar year was 2016 and that was an election year somewhere way down the road and he decided that was reason enough to hold that seat open.

President Obama nominated a replacement anyway, of course. In March of that year, the month after Justice Scalia died, almost exactly one month later, he nominated the chief of the U.S. Circuit Court of Appeals in the District of Columbia, Merrick Garland for the Supreme Court.

Merrick Garland was a well-liked, well-respected, noncontroversial pick for the bench. I mean, the only way in which he was controversial is that he might have been seen as too conservative by some Democrats in the Democratic base.

Merrick Garland was a moderate jurist, well-liked by even Republican lawmakers. In fact, some Republicans in the Senate had held him up as the kind of example of a moderate centrist justice who they could get behind, but they were sure that a Democratic president would never nominate him.

Well, President Obama did -- 63-year-old centrist jurist Merrick Garland who had been hardily and I think perhaps even unanimously approved by the Senate in the past.

Nevertheless, Mitch McConnell vowed that Merrick Garland would never see the inside of the Supreme Court, that his nomination would never be considered. President Obama would not be allowed to fill that open seat, not if he nominated Jesus himself.

The Republicans on the Senate committee that consider Supreme Court appointments, the Judiciary Committee, all 11 Republican members of the judiciary committee, they all not only agreed with Mitch McConnell on this, they all put their names to it in writing.

They all signed a letter saying they would not consent to any nominee put forward by Barack Obama because it was 2016 when the vacancy became available. And that's an election year.

And so, for the first time in the modern era, for the first time since reconstruction immediately after the Civil War in the 1860s, the controlling party in the U.S. Senate in 2016, they refused to hold any hearings at all.

They refused to fill an open seat on the Supreme Court. Merrick Garland never got a hearing. October of 2016, the Supreme Court reconvened with just eight justices on the bench. They held that seat open for 400 plus days. And you know how the rest of the story goes.

That November, an upset win by Donald Trump. He's elected president. January the following year, the previous Congress came to a close. That meant the expiration of the Merrick Garland nomination. The new Congress was sworn in. President Trump, 11 days into his presidency, nominated conservative Judge Neil Gorsuch to fill Scalia's seat.

Republicans in the Senate were happy to hold confirmation hearings then and Gorsuch was on the bench by April. Mitch McConnell has since described that episode as the proudest moment of his entire career. He says when he looked President Obama in the eye and told him he would not fill that vacancy on the court.

Mitch McConnell has turned it into a sort of rallying cry, a matter of inspiration. The absence of bedrock principal as his political calling card and war cry.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY): The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this, give the people a voice in filling this vacancy.

(END VIDEO CLIP)

MADDOW: McConnell said the next president should get to fill that seat, not Obama, not that close to a presidential election. When President Obama nominated Merrick Garland, it was 237 days before the 2016 election we're now 46 days from this election. But Leader McConnell says tonight, "President Trump's nominee will receive a vote on the floor of the United States Senate." And he can say that. That doesn't make it true, but that's his plan.

Joining us now is Dahlia Lithwick, legal correspondent and senior editor at Slate. Dahlia, it's always a pleasure to have you here under any circumstances. These are sad circumstances tonight.

DAHLIA LITHWICK, LEGAL CORRESPONDENT AND SENIOR EDITOR, SLATE: It is -- I sort of never ever thought this day would come, Rachel. I didn't think it would ever come.

MADDOW: You know, Dahlia, part of the reason I wanted to talk to you is because Justice Ginsburg liked you a lot. I mean, you covered her very closely for years on the Supreme Court. You talk to people like me about the Supreme Court, but she liked you.

She not only called you very good at one point. She called you spicy, which I have to imagine became a touchstone for your life that Justice Ginsburg called you spicy and she meant it in a good way. Can you just talk about covering her and what you knew of her and what your interactions were like with her?

LITHWICK: I mean, I was so lucky, Rachel. I got to sit down with her in January for a really long interview. We did a special project where we interviewed all of the women that started Harvard with her. And she was supposed to give us a half hour. She gave us more than an hour, and she was so Ginsburgy.

You know, she fact-checked us. We lost a woman somehow who didn't graduate. She made us track her down. She was so precise and so meticulous. And right after that the court shut down for COVID, and so we were incredibly lucky to get the time with her.

But I'm really struck by something, Rachel, that Nina said, which is that she was the least likely superhero because she was very precise, very tiny, very (inaudible) conservative in every way. She almost didn't get the Supreme Court nomination because the women's right's movement thought she was way, way, way too conservative.

So she was this person who was an incrementalist. She was old school and she torqued into this larger than life radical feminist icon. She completely changed in a lot of ways. I think it's a function of being the only woman on the court after Sandra Day O'Connor left.

MADDOW: In terms of that role and that transformation, what do -- given that, given that ark that you just described and given what you knew about her in person, how do you think that we should think about her role as, you know, notorious RBG, this huge, literally pop culture presence that she had.

The way that she became a living icon even as she still served on the court. Should we see that as ironic? Should we see that as a sort of sideshow to her importance as a legal theorist and a jurist, or is that -- is that central to her legacy?

Does that end up changing her in history because she had such a huge profile, I mean, you can compare her now to Justice Sotomayor and Justice Kagan, the other women with whom she serves on the court, and they are beloved and they, you know -- Justice Sotomayor wrote a book that was very well received and they have followings, but nothing like the sort of cult of Justice Ginsburg.

LITHWICK: No. I've got the earrings. I've got the hat. I've got the mug. I mean, it's just a whole different stratosphere. And I think the answer is probably both, Rachel. I think she loved it. She loved the iconic, the hero worship. She loved that everybody knew her workout routine. And I think she gloried in it.

But I don't think she gloried in it because she necessarily wanted to be a rock star. I think she was trying incredibly hard, especially in the last few decades, to talk to young women, to talk to millennials, to talk to high-schoolers and college students.

She really felt, I think, particularly as the fortunes changed at the court and she started writing the sense, she felt that she had to pitch herself at them because they were the generation that was going to effectuate change.

And I think that the (inaudible) that's really important is I never heard her talk without taking time to say I stand on the shoulders of giants. She would cite chapter and verse anybody who helped her in her career, everybody who helped her get a clerk ship, every professor who reached out and gave her a chance.

So I think she was both really mindful of who came before and blazed the trail and also really mindful of who came after. And I think in some ways that iconic status kind of hits the middle distance right between where she happily, joyfully accepts that we all have the earrings and the mug.

But I think she has a much deeper message, which is I'm not coming to save you. I stand on the shoulder of giants and you are going to someday stand on my shoulders and change the world.

MADDOW: Dahlia, there is two other things that are immediately upon us, which we have to think about, even though tonight is a night to mourn the passing of Justice Ginsburg. We do have to think about what comes next. And I'm going to pose these both to you at once and you can answer -- I know I'm going to make you answer both of them but you can pick which one you want to answer first.

The first is that I have to ask you to weigh in on what is likely to happen or what you think will happen when it comes to the process around filling this seat given what happened with Justice Scalia's seat in 2016 and the Republicans holding that open for more than a year or not allowing President Obama to fill that and saying that they invented some principle that meant that they couldn't allow a confirmation process to go forward until after the election.

The other thing I want to ask you, and I haven't put this to anybody tonight yet, is the prospect that the Republicans do find a way to fill this seat with another Gorsuch, another Kavanaugh, somebody along those lines, somebody who we've seen on this list of potential Supreme Court nominees that President Trump has put forward as recently as last week.

If the court does become a 6-3 sort of hard right solid majority, what do you think we should prepare ourselves for in terms of what we lose or what happens through the court that could significantly change American life?

LITHWICK: Well, I'll do your first question quickly, which is I think that, and I think Nina made this point as well. I was astonished that there was almost no blowback to Mitch McConnell and Republican senators taking the position they took.

Not only did they not give Merrick Garland a confirmation hearing, some of them didn't give him courtesy meetings. They didn't say, come into my office and we'll talk.

And I was really shocked you may remember, Rachel, in the fall of 2016 Ted Cruz, John McCain, Chuck Grassley were all saying things like even if Hillary Clinton wins, we're going to hold that seat open for four years. We'll hold it open for eight years.

So they were unequivocal that this was about power and who controlled the Senate. And they won. They just flat-out won. There was no consequence. And as we know, I think Donald Trump by about a 2-1 margin, voters who said they cared about the Supreme Court broke for him.

So this was a winning issue for him and for Republicans in the Senate and I think the question is whether that changes now, whether in the wake of Brett Kavanaugh, in the wake of really seeing the abortion case this year come down to a thread, whether people who are Democrats are going to say, you know what, I'm bumping the court up on the list. It's now my priority too.

And polls suggest that that has happened. Post Kavanaugh, post this term but we'll see. On the merits, Rachel, it's terrifying to think of what could happen if this seat goes to Amy Coney Barrett or somebody who on the record wants to overturn Roe, on the record people who are on this short list will not even say whether Brown v Board was correctly decided, much less Roe.

I think we are going to look at a massive, massive watershed, turning back the clock on not just voting rights, not just gerrymandering, civil rights, worker rights, environmental right, women's rights, you name it.

We have seen the beginnings of a juggernaut to that respect (ph) these past two terms and I think it will only continue. I think if Democrats want any of the outcomes that they say they want, the quickest door way to that is getting the Supreme Court. That means voting. It means voting even in COVID, and it means taking back the Senate.

MADDOW: Dahlia Lithwick, legal correspondent, senior editor at Slate, somebody once described by Ruth Bader Ginsburg, Justice Ginsburg as "spicy." Dahlia, it's great to have you here tonight. It is very sad circumstances, but thanks for making time to be with us.

LITHWICK: Thank you, Rachel.

MADDOW: I want to reiterate what we heard a few moments ago from Vice President Joe Biden. He gave remarks from Wilmington, Delaware. He had been on a plane and had heard about the passing of Justice Ginsburg and he gave brief remarks, didn't take questions, but he closed his remarks with this.

He said, "The voters should pick a president and that president should select a successor to Justice Ginsburg." This has now been reiterated in a written statement put out from the Biden campaign.

Biden continues, "This was the position that the Republican Senate took in 2016 when there were nearly nine months before the election. That's the position the U.S. Senate must take now when the election is less than two months away. We are talking about the Constitution and the Supreme Court. The institution should not be subject to politics."

Right now the institution of the Supreme Court is represented by the building that you see on the left side of your screen there. That is the court's building in Washington, D.C. and of course just like every other institution of life, the court's proceedings have been disrupted and carried out under strange new remote access rules because of the pandemic.

But tonight, people are there. It seems like everybody that we can see is wearing a mask, which at least is good and it is of course outdoors. But this crowd is growing increasingly large at the Supreme Court tonight. There is an unorganized event there. Just people spontaneously convening there in honor of Justice Ginsburg's passing.

And I think probably also in recognition of how important this political moment is, the political fight that will now happen over her seat, what it suggests in terms of America's institutional norms and (inaudible) and how much they have survived not just the Trump presidency, but what led up to it in terms of the Merrick Garland nomination being ignored by the Republican controlled Senate even while President Obama was president.

It's a big night. The headline of Justice Ruth Bader Ginsburg's obituary in "The New York Times" tonight calls her, "feminist icon." Some had described as powerful and point -- describes her "powerful and pointed dissenting opinions" earning her, "late life rock stardom."

That obituary has just posted tonight in "The New York Times" and it, of course, you don't even have to look at the byline to know that it was written by our next guest, the great Linda Greenhouse, longtime Supreme Court reporter and analyst for "The New York Times."

Ms. Greenhouse, I cannot think about the Supreme Court for very long without thinking about you. Thank you so much for being here on such a sad and pivotal night.

LINDA GREENHOUSE, PULITZER PRIZE WINNING SUPREME COURT REPORTER: I'm delighted to be on your show, Rachel but these are tough circumstances.

MADDOW: Yes. Can you just talk to me a little bit about the way that Justice Ginsburg is perceived? Obviously, the Ginsburg vacancy on the court will become a whole another thing in terms of politics and what happens with the court and what the institution of the court. I want to talk to you about that too.

But with her passing tonight, the loss of her as a human being among us, can you tell us about what she means in U.S. history and what she meant to you covering her for all these years?

GREENHOUSE: Yes. I heard your very interesting conversation with my friend Dahlia and I agree with a lot of what Dahlia said. One thing that occurred to me, however, is her rock star status really said as much about us as it said about her.

Maybe it said more about us than it said about her in the sense that I think we needed her voice. She, in her powerful dissenting opinions in let's say the second half of her tenure on the court, she channeled feelings of discomfort that so many of us had with the way things were evolving on the court.

And she was able to speak to law, but also speak to reality, you know, in her great dissent when Chief Justice Roberts wrote the Shelby County case which cut the heart out of the voting rights act. Chief Justice Roberts said, well, things have changed in the south. We don't need this kind of things anymore.

And she said, you know, that's like saying you don't need an umbrella just because it stopped raining. She was able to kind of take these deep constitutional principles and explain to ordinary people in theory (inaudible), unjargony (ph) language of her opinions, you know, tell us what it really meant.

And I think so that's why I say we needed her and we needed the Ruth Ginsberg that she became. And I'll also say, you know, she had been at this so long. Her -- really, to use a Ginsburg word, path-making litigation strategies in her early career as a young lawyer, established new norms of constitutional thinking about sex discrimination, about equality.

The nature of equality that we now kind of take for granted because they were radical, which she stood up before that all-male Supreme Court and talked about the true meaning of the 14th amendment, which the Supreme Court had never thought had anything to do with women or discrimination on the basis of sex.

She made that happen. She could talk to them in ways that they could understand. It is really a life of remarkable achievement.

MADDOW: Talking about her framing issues and her clarity of thought in the way that she brings things down to a human level, it makes me wonder about her role on the court.

I mean, it has been -- I'm talking to Linda Greenhouse and so I'll probably get this wrong and you will correct me, but it seems to me that it's been at least a generation since there was a Democratic appointed majority, a majority of Democratic appointed justices on the court.

And so there hasn't been a liberal-led court in a long time, but in what way was Justice Ginsburg a leader of the liberal wing of the court? And does the liberal wing of the court function that way? How do you expect it to change with the absence of her voice and her role?

GREENHOUSE: Well, a couple of things. She was the senior associate justice of the, you might sad, liberal wing once Justice John Paul Stevens retired in 2010. He was a Republican appointee, but he retired as really just about the most liberal member of the court that he was serving on.

And I think the others on her side of the street gave her a good deal of deference. And so in these important opinions, they deferred to her in dissent and so she spoke for the four in these big 5-4 cases. And so the voice of dissent wasn't dissipated by every dissenter saying what they thought.

It just they all spoke through her, and that really amplified her voice. And, you know, one thing about today's court, when you said a long time since there had been a Democratic appointed majority. What was notable about the court that she joined in the early 1990s was that there was a fair amount of crossover.

So, you know, Justice David Souter, Republican appointee, became a liberal justice -- Justice John Paul Stevens, as I said. Now we don't have that. We have a court where the liberals are all the Democratic appointees and the conservatives are all the Republican appointees, and that's a perilous thing for the court.

It makes it very hard for people to look at the court and not see justices who are projecting a political agenda, even though they don't think that's what they're doing, and I think that's not what they're always doing, but it is very hard to look at them and not think, what are they doing?

MADDOW: Linda, if we do see Senator McConnell succeed, he put out a statement tonight saying that there will be a vote on the floor of the Senate for President Trump's nominee to replace Justice Ginsburg, and that's not at all a certainty and a lot of politics will go into whether or not that is decided, a lot of pressure and that will put a lot of spin on what's going on in the election fight for now and the next 46 days.

But if McConnell succeeds here and he is able to get another justice on the court who is along the lines ideologically of a Justice Kavanaugh or Justice Gorsuch, what do you think would -- what do you think that we should know?

I asked this of Dahlia as well. What do you think that we should expect in terms of what important cases would go the other way? What existing rulings would be overturned and what might change in America with a court that right winged?

GREENHOUSE: Well, you know, one very troubling straw in the wind I think was a decision that came down from the 11th Circuit Court of Appeals the other day involving voting rights for former felons in Florida. And the court split 6-4, I think. And I believe all the judges, all the appellate -- five of the six appellate judges in the majority were Trump appointees.

And, so, you know, there is a template there for certainly a lack of regard for the right to vote. Voter suppression being the name of the game today. So that's very worrisome. We had an appellate argument this week in the case involving Harvard and Harvard admissions and a phony claim which was rejected by the district judge that Harvard is using racially discriminatory tactics in building a diverse class of students.

And I think the ability of universities to take race at all into account in building their student body is certainly in jeopardy. It's been in jeopardy for a long time, but it was Justice Kennedy, you know, who retired two years ago, that kind of kept that alive.

So, you know, and Dahlia mentioned abortion, that's obvious. The right to abortion really is hanging by a thread. So, you kind of, you know, pick your case, and to the extent that things have happened only incrementally in recent years instead of sweeping decisions.

That's because the conservative side couldn't always quite count on five votes and if they get one to replace Justice Ginsburg, I think a lot of this would be a foregone conclusion.

MADDOW: Linda Greenhouse, Supreme Court reporter and analyst for "The New York Times." It is an honor to have you with us tonight, Linda. Thank you for making time on such an important and difficult night. And the obituary that you've just posted for Justice Ginsburg is a beautiful thing. Thanks.

GREENHOUSE: Thank you, Rachel.

MADDOW: All right. I think that we have been able to just turn this around while I was speaking with Linda Greenhouse from "The New York Times." We have been showing you these images tonight, these live images outside the Supreme Court. And just a few moments ago, this happened.

(VIDEO PLAYING)

MADDOW: People singing "Amazing Grace" outside the United States Supreme Court building tonight. We've been watching these crowds build all evening in Washington, D.C. Joining us now live is Senator Corey Booker. He's a senator from New Jersey, a member of the Senate Judiciary Committee. Sir, it is great to have you here tonight. Thanks for making time. It is a difficult night.

SENATOR CORY BOOKER (D-NJ): Very difficult night. And that was very, very beautiful.

MADDOW: Yes. I mean, I have been remarking on the air about how it's -- there aren't very many things that happen in U.S. politics where there is a physical place where people go to be together because of a political moment. I mean, there are rallies and there are events and there are planned things and conventions and all those sorts of things.

But this is a spontaneous outpouring tonight. It's got my -- it's got my civics -- my civic soul sort of inflamed here looking at it. It's actually a very inspiring thing to see.

SENATOR BOOKER: It really is. And I think that a lot of Americans get it at their core, that we were -- have been a country where by force of law, whether you are gay or black or a woman, the laws of this country were against you and that building there -- Posse versus First -- and I can go through many of the awful, horrible cases.

But it's been champions in that building, from Thurgood Marshall to Ruth Bader Ginsburg, that helped this nation recognize the humanity and the dignity, the equality of us all. And her leaving, her death, not only in a year that we lost C.T. Vivian, John Lewis, that we've just seen so many of our heroes and champions falling by the side.

But it is an era of people that advanced our rights and our liberty and our equality but now there is a looming worry.

We saw this with Ruth Bader Ginsburg's famous dissent as John Lewis' fight on the Edmund Pettis Bridge gaining the Voting Rights Act but then seeing it pushed back. We see this along so many different fronts that a lot of the gains that gave us the equality, the ability to control our bodies, so many of these things now, we are again at a cross road of or almost to the point where people want to pull us back.

And so this is a night both to recognize the champion that she was in advancing human dignity, human rights and equality, but also that reaffirms the jeopardy that we are in where to let a lot of our hard-won rights potentially slip away and turn back the clock on a lot of the things that I think generations like mine and ones that have come since have taken for granted.

MADDOW: Senator, can you tell us to the best of your estimation what's going to happen on your committee on the Senate Judiciary Committee over these next few weeks. I'm assuming that we will get President Trump announcing a nominee very quickly. We know the list that he says he will choose from, those nominees he's made public lists of the people he said he will consider.

What do you think will then happen. It is a Republican-controlled committee. Senator Graham is the chairman. He has said in the past that if an opening came up in the last year of Trump's term, quote, "We will wait until the next election." Do you believe he will keep his word about that? Do you have expectations in terms of how this is going to play out?

SENATOR BOOKER: Well, I don't have many expectations right now. There is obviously, as you can imagine, amongst me and my colleagues a lot of conversations and talk and I think that's going to continue through the hours into the weekend.

But I want to just pause for a second about what you say about Lindsey Graham. There are a lot of senators that went to the floor during the Merrick Garland -- I'll call it a controversy because it really was -- and the very firm statements about the timing of the election. And they were unequivocal. And they were very plain.

And I think that this is going to be one of the great integrity checks of whether people's word, honor and integrity really is going to be steadfast. I have no illusions. I'm not so starry eyed not to believe that this is a rough world of politics.

But I do believe that many of my Republican colleagues should they go against what they said four years ago, they will not only do damage to their own sense of honor, but I think they're going to do damage -- further damage to the institution in and of itself.

So I don't know how this is going to roll, but we cross that hurdle first with people like Lindsey Graham going against what they said four years ago and others who came to the floor and made plain statements.

I think that we are going to go into unfortunately another dark road. And I can't be sure how it all will play out.

MADDOW: One of the reasons I wanted to speak with you, Senator Booker, is because I feel like you have -- you have a curiosity and interest and devotion to making sure that moral considerations are not only part of what everybody keeps to themselves about their political decision making but moral considerations are discussed and moral considerations are put forward and kept in the argument so that we know that we're talking about things that have value and that aren't just about power.

Senator McConnell had said gleefully before the passing of Justice Ginsburg that, of course, if there was a vacancy while President Trump was in office, even if it was, you know, five minutes before the election, of course he would fill it. He's been publicly gleeful and has actually even raised funds on the basis of the fact that he would be rankly hypocritical in his approach to a Supreme Court vacancy with a Republican president in office versus a Democratic president in office.

And that sort of excitement about it, that sort of glee in putting forward that it is about power and nothing else, that there is no principle at work, that I will do what is necessary to maximize my party's power no matter what and anybody who falls for any idea of a principled decision about these things is a sucker who I will gleefully take advantage of.

That performative power of politics and sort of (INAUDIBLE) the rule of might makes right is something that I feel like we're living through now in Republican politics and in the Trump era. It is also something that I don't feel like I have very much clarity at all as to what's the best tactical way to fight back against it and to what's the moral way to fight back against it.

I mean do Democrats such as yourself on the Judiciary Committee, you know, stick to your principles and do what's right and be institutionalists and think about the constitution and think about the country and get taken advantage of because of it when they're playing pure power on the other side?

How do you defend against the kind of politics you're up against if it really is just about seizing control.

SENATOR BOOKER: Well, I think you started the right way. This has been an era where I've had a difficult time struggling with the degree to which Donald Trump's presidency has been a moral violation after moral violation. Things that my Republican colleagues, I mean even when I've had conversations in private that they have been disgusted with the things that this president has done to institutions.

His attacks on law enforcement and his attacks on the FBI. His attacks on the intelligence community. This is a big, immoral moment from its very beginning. And I know people might have used rank power to try to win sort of their interests and stay loyal to the president all in the guise of that.

But we are in a moral moment in America. And I think that this is a moment where we're going to all be tested in how we choose to respond. So I know there will be a lot of attention rightfully on Senate Democrats. There will be people talking about what are the tactics or levers we have at all.

I heard Hillary Clinton rightfully talk at the beginning of the show about what -- whatever procedural techniques we have, tactics we have. But I also want to tell you when they wanted to pull away the Affordable Care Act, it wasn't just Senate Democrats trying to figure out ways to protect health care for millions of Americans

It was America that showed up in a way that was so significant. And I'm hoping that this is a moment where America shows up. Regardless of what your political persuasion is, there is a clear way to go to honor how we set up the traditions of Merrick Garland that they are violated now with all that's at stake. I'm hoping that people will speak out.

That's why the Supreme Court before me that you are showing with so many Americans spontaneously coming out gives me hope that this will be one of those times that even if Republicans want to do the wrong thing, that there will be enough people that have a sense of shame, enough people that have a sense of honor that have a sense of shame, enough people that have a sense of honor that they will stand up and speak out and prevent them from thrusting the Senate further into a sort of an era of delegitimization. But from yanking and pulling the Supreme Court down further in the eyes of many Americans in terms of being a legitimate institution that has been overcome by power politics.

Ruth Bader Ginsburg lived to make that a moral institution based on the sacrosanct ideals of this nation, ideals of human rights and civil rights. And I'm hoping at this time of her passing, we all can rise to her level of honor and stand upon those principles and show our commitment to them.

Senator Cory Booker, a member of the Senate Judiciary Committee. Thanks for being here tonight, Senator. I know it's Friday night, it's a late night and this is a difficult time but it's an honor to have you here. Thank you.

SENATOR BOOKER: Thank you, Rachel. Always.

MADDOW: All right. We're going to take a quick break as we look again at these live images. I'm glad they're panning this so that you can see.

The pillars here and the reason this looks like a movie set is because this is one of the most iconic places in Washington, D.C. In a downtown Washington that is meant to inspire awe for the constitution and the bedrock principles of our republic. The Supreme Court sort of stands alone in terms of its architectural gravitas on Capitol Hill.

And to see people convened there tonight, not in protest or support of any one decision and not as overflow from some sort of protest or gathering happening on the mall nearby or at Capitol Hill, see them turned out for the Justice who passed tonight, Justice Ruth Bader Ginsburg who died at the age of 87, is a remarkable thing.

We'll take a quick break. We'll be right back.

(COMMERCIAL BREAK)

MADDOW: It's good to have you with us tonight as we continue to cover the national reaction to the death of Supreme Court Justice Ruth Bader Ginsburg who has died tonight from complications of pancreatic cancer at the age of 87. Cannot be seen to be a surprised that she has died given all the health challenges that she has had and given her advanced age. But it is a shockwave across this country for a lot of different reasons that she is gone tonight.

Joining us now is Sherrilyn Ifill, who is president and director counsel at the NAACP Legal Defense and Education Fund. Sherrilyn, I have been looking forward to talking to you all night. Thank you so much for making time.

SHERRILYN IFILL, PRESIDENT, NAACP LEGAL DEFENSE FUND: Thank you for having me, Rachel.

MADDOW: It strikes me that Justice Ginsburg is a different kind of justice that everybody else on the court -- that it is not just where you are on the ideological number line and what part of the math you make up in terms of how, you know, various 5-4 majorities and minorities were put together on the court.

She came to this position on the court after a lifetime's work. A lifetime's worth of work as a pioneering civil rights attorney. There is nobody else like that left on the court now.

IFILL: No. And I think it's, first of all, just want to say how difficult it is tonight to kind of accept this passing, even though, you know, I think many of us believed and knew that it was coming. And that is a hole that's left on the court.

You know, Justice Ginsburg herself had been a civil rights lawyer at the ACLU. She basically pioneered the field of women's rights law. She had been a law professor but she understood things that civil rights lawyers understand, which is how injustice actually unfolds.

And we saw this when she dissented in the famous Lily Ledbetter case, the case of the woman who didn't realize that she was being paid considerably less than a male counterpart in the same job. And a majority of the court couldn't understand how she didn't know she was kind of cutoff from her claim because it was brought too late they said and Justice Ginsburg dissent in which she talked about what the workplace is like, why a woman would not know that she was being paid less than her male counterpart was so powerful and important and later became the basis of the Lily Ledbetter Equal Pay Act that was signed by President Obama.

And same in that strip search case involving the 13-year-old girl that you may remember, the Stafford independent school where at oral argument a number of the male justices seemed not to be able to understand why a 13-year-old girl would feel so humiliated by being strip-searched in school as officials look for drugs. And Justice Ginsburg, you know, later talked about they were never 13-year-old girls.

She had a way of bringing into the work not only her brilliant intellect and her knowledge of the case law but she also understood the lives of ordinary people because she had had clients who had been in those situations.

MADDOW: Sherrilyn, I feel like a lot of people right now are despairing specifically about the prospect of civil rights and voting rights if Leader McConnell succeeds in what he says he's going to do tonight which is getting a Trump nominee voted on in the United States Senate despite the fact that we're only 46 days away from an election and despite the fact that he held a seat open for 400 days when Antonin Scalia died and President Obama was there.

I think a lot of people are despondent tonight about the prospect of another Kavanaugh or Gorsuch or Alito or Thomas type judge being put on the court and instituting what will be a generation of hard-right majority that no -- that -- that no voting rights or civil rights case will survive. How dire are your worries about that prospect?

IFILL: Well, I haven't quite gotten there yet, Rachel, because I don't think we are there yet. I think this is a moment of reckoning for this country. And my eyes are darting away from the camera because I'm seeing all these people standing outside the United States Supreme Court.

This year 2020 has been so difficult, but it has really been a reckoning. We are being called to confront the deep flaws in our democracy and the flaws in our political leadership. And this is one of those moments when we are going to see what we need to see. We are going to see whether there are enough United States senators who have the decency and the courage to stand for what is right.

Today we saw long lines of people preparing to vote in Fairfax, Virginia. There is a presidential election happening right now. Early voting has started, and people are trying to pick the person who will lead the country. They're trying to pick United States senators and other down-ballot races.

The obscenity of trying to nominate and ram through a justice for the United States Supreme Court for a lifetime appointment at this moment is something that is very, very serious indeed and that I don't think we can recover from. I don't think this is just about civil rights cases I think this would be a grave blow to our democracy.

And so frankly this is a moment in which I don't feel challenged. I feel that this democracy has been challenged, and we are expecting and looking to -- and I hope that you all will be compelling -- United States senators to stand up and answer the appropriate questions. And finally at the end, stand for decency.

It is indecent to imagine running roughshod over the will of the people who are voting in this election. The election is only 47 days away. On average, it takes 163 days from vacancy to confirmation for a Supreme Court justice. This is about raw power. And at the end of the day, we finally have to ask ourselves the question that the great voting rights activist Danny (INAUDIBLE) asked, is this America.

We are at that moment now where we have to confront ourselves. We've lost a lot of our iconic leaders this year. We lost John Lewis and Reverend C.T. Vivian and Reverend Joseph Lowry (ph) and now Justice Ruth Bader Ginsburg. Those elders have left us, and now it's left for us to determine who we are going to be.

And so, yes, I worry about what could happen, but I think we have a long way to go before we get there. And you've already talked about some of the senators like Graham and Grassley and others who have said that they would not proceed with a vote if it was during the final year of Trump's first term, especially if the primaries had already started.

Here we are 47 days from the general election. At the end of the day, have we no decency left? I'll be looking to see I think the America people, the people you see outside that Supreme Court, the people singing "Amazing Grace", the people standing on lines the first day of early voting in Virginia and preparing around the country to vote despite the pandemic. Those people are waiting to see who we are going to be.

I'm going to continue to push and trust and fight, as we will at the Legal Defense Fund, for the right thing to happen. And if it doesn't happen, we will keep fighting even then.

MADDOW: Sherrilyn Ifill, the president and director counsel at the NAACP Legal Defense Fund. It is an honor to have you here tonight on this sad and pivotal night.

Sherrilyn, thank you so much.

IFILL: Thank you, Rachel.

MADDOW: I want to bring into the conversation now somebody who will herself be in a pivotal role as this moves forward.

Senator Mazie Hirono is a Democratic senator from the great state of Hawaii. She is a member of the Senate Judiciary Committee.

Senator Hirono, thank you for being with us tonight on short notice --

SENATOR MAZIE HIRONO (D-HI): Thank you, Rachel.

MADDOW: -- and on a sad occasion. Thank you.

First let me just ask your reaction to the passing of Justice Ginsburg tonight.

SENATOR HIRONO: It just struck me like a bolt of lightning and just so much sadness and regret for all the battles that she fought for so many of us. And she meant a lot to millions of us.

And so it was just very shocking, but of course it didn't give Mitch -- it didn't take long for Mitch McConnell to come right out of the box to say that he will fill this position. So the word "hypocrisy" means absolutely nothing to him.

It is certainly up to the rest of us. and I'm glad that my friend and Republican colleague Lisa Murkowski came on and said it would be a double standard to try and push somebody through in only 46 days.

So I hope that there are other Republicans who have the courage of the words that they said when they stepped forward when Mitch McConnell said, we're not going to deal with Merrick Garland nine months before the election. And people like Cory Gardner and Thom Tillis and Lindsey Graham all stepped up to support him, saying we shouldn't do that so here we are.

They're all facing tough re-elections I think this should become an issue of principle that they should be asked. You say one thing in that instance, are you going to apply that to what you said last time? So let's see what they do.

But, you know, so far they haven't particularly proven themselves to be profiles in courage.

MADDOW: Senator Hirono, while we're talking we're looking at live images of the United States Supreme Court with people gathered tonight on the step of the Court to honor Justice Ginsburg and I think to be around other Americans who are having the same reaction a lot of us are to this sad news and with worry about what's going to happen next.

Is there anything -- what can you tell us about what options you and your fellow Democratic senators have in terms of influencing what happens over these next 46 days and what happens in the senate and what happens specifically in your committee? Obviously any nomination would have to go through your committee before it went to the floor.

We don't yet know what Senator Graham is going to do given the fact that he said unequivocally in October of 2018 that he would not allow a nomination to go forward before the election in a circumstance like this.

What options do you have if they decide to be hypocritical and go back on their word and treat this differently than they did four years ago?

SENATOR HIRONO: First of all, I think we should hold their feet to the fire and expect them to live up to the words they said. But beyond that, we Democrats are going to do everything we can. We haven't determined what all of that might be, but we will fight back. We're not going to just take this lying down.

And then going forward, there will be probably more calls for Supreme Court reform if Mitch McConnell in his ruthless ways pushes somebody through and that somebody will be a very conservative, ideologically-driven person to carry out the Trump agenda. That would be very bad for women's right to choose, bad for unions, bad for working people, LGBTQ rights, bad for the Affordable Care Act -- you name it, the voting rights act. So you will have a Supreme Court that will be even more leaning toward corporate interests over individual rights.

And I was thinking about the time that I had dinner with Ruth Bader Ginsburg I was sitting next to her. We talked about all these 5-4 decisions that are coming out of the Supreme Court. And she expressed her concern that we will see more of it because it is a divided court, and that is really bad for the Supreme Court to have these kinds of divided opinions because then you are not giving the direction to the circuit and district courts across the country as to what the state of the law is.

And so I shared that discussion with her, and I was just as concerned as she was.

MADDOW: Senator Mazie Hirono, member of the Senate Judiciary Committee representing the great state of Hawaii in the U.S. Senate.

Senator, thank you so much for your time tonight.

SENATOR HIRONO: Thank you.

MADDOW: It's an honor to have you with us here. Thanks

SENATOR HIRONO: Thank you.

MADDOW: I want to bring into the conversation now Nancy Northup. She's president of the Center for Reproductive Rights. We have been talking around one major elephant in the room tonight, which is the prospect of a very quickly, much more deeply conservative court and what that would mean specifically for reproductive rights.

Nancy Northup, thank you so much for making time to be with us. I know it's a tough night.

NANCY NORTHUP, CENTER FOR REPRODUCTIVE RIGHTS. Well, thank you. it's a devastating night. I mean Justice Ginsburg was a legal leader and was the force, I would say, behind the understanding in this country that women are deserving of equal rights under law.

She fought that as an advocate before the court. And she was that advocate on the court and really understood the way that women's ability to control their reproductive lives, their fertility, and also to be treated fairly in pregnancy is just essential to our equality. And it is such a loss that she's gone.

And we're mourning at the Center for Reproductive Rights, and it's a hard moment tonight.

MADDOW: I know that you're also gearing up for the fight ahead as you always are. If the Republicans do find a way to escape their most recent history on Supreme Court nominees and they put a Trump nominee on the floor, given what you know of the shortlist that Trump has -- or the long list that Trump has put forward and who he's likely to nominate, would you expect the core right to be -- the core right to have access to an abortion as well as other core reproductive rights to be at risk immediately?

NORTHUP: Well, I mean absolutely. The president's made clear that he only wants to nominate justices to the Supreme Court who would overturn Roe versus Wade. That was the pledge in 2016. And so it's going to be really critically important that the nation make clear that we are going to replace who Justice Scalia called the Thurgood Marshall of women's rights. That we're going to make sure that a replacement has that commitment to fundamental equality and fairness under law, and scrutinize the record and make clear what that record is of anyone who the president nominates for the Supreme Court.

There are hundreds and hundreds of anti-abortion laws that have been passed in the last decade, and there are dozens of laws going through the court right now and court challenges on abortion rights.

So this is such a pivotal moment. You know, we just won a case in June, winning the same issue that we'd won four years ago in whole women's health. I mean the time is really, really a tough one to be facing this loss on the court.

MADDOW: Nancy Northup, president of the Center for Reproductive Rights. Nancy, I have a feeling I'm going to be seeing a lot of you in coming days and weeks talking about the fights that are newly upon us with the passing of Justice Ginsburg.

Thanks for being here tonight, the night that she's passed.

NORTHUP: Thank you, Rachel.

MADDOW: All right. Our continuing coverage of the death of Justice Ruth Bader Ginsburg at the age of 87, the national response to her passing.

Our continuing coverage continues now with Brian Williams and Nico1le Wallace. Thanks for being with us tonight.

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

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