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Transcript: The Rachel Maddow Show, September 21, 2020

Guests: Lisa Beattie Frelinghuysen, Elizabeth Warren, Sheldon Whitehouse, Ezra Levin


Democratic Senator Elizabeth Warren of Massachusetts is interviewed. Rachel interviews Democratic Senator Sheldon Whitehouse of Rhode Island.


CHRIS HAYES, MSNBC HOST: That is ALL IN on this Monday night.

"THE RACHEL MADDOW SHOW" starts right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend. Much appreciated.

HAYES: You bet.

MADDOW: And thanks to you at home for joining at this hour.

As the number of Americans who have died from coronavirus hit 200,000 this weekend, Americans did what we could to mark that landmark number.

These folks went to the White House to stand outside the big fence they've got there now to spell it out, "Trump lied, 200,000 died."

These few folks went to one of the Trump golf courses in Palm Beach. Again, "Trump lied, 200,000 died." Their shirts, you can see there, say "voting matters."

Some other folks did the same thing out in front of the Arizona state capitol, marked with candles there and flowers. "Trump lied, 200,000 died."

People just are finding their own way to mark 200,000 of us dead in six months, right? There really hasn't been a government response to this at all, at least any government commemoration that we can see, at least not yet. Maybe they'll do something. I don't know. So far, it appears the president is just planning more rallies as 200,000 people die.

At the National Cathedral in Washington yesterday, they tolled what they call their mourning bell. It's a bell that they toll when they hold a funeral at the national cathedral. It is huge. It makes a huge, resonant sound.

That bell weighs 12 tons. Yesterday starting at 5:00 p.m. Eastern, they tolled that bell -- they rang it 200 times, one time for each 1,000 Americans who have died so far with COVID.

In Central Park in New York City yesterday, they held a march with banners that said "March for the dead. Fight like hell for the living". The opera singer Adrienne Danrich sang "Ave Maria."


MADDOW: Americans are having to sort of make up these commemorations for ourselves however we can, however we do among ourselves and our own civic groups, family groups, local groups. I mean 200,000 of us dead. More dead than in any other country, and the government's just not even really taking notice, maybe hoping to not make too big a deal about it. You know, pay no attention to the 200,000 coffins with Americans in them.

As we hit that milestone in terms of Americans dead and as we head out of the summer and into fall and colder weather, the data from the COVID tracking project at Johns Hopkins now are not good in terms of where we are heading. That data shows that in 33 states, the number of new cases this week is higher than the number of new cases last week, 33 out of the 50 states.

That data also shows that there are only five states right now that are crushing it in terms of test positivity. This is what proportion of your tests produce positive results. This is the metric that tells you if you're doing enough tests.

So, among other things, you can keep up. You can contact trace every positive test to squelch any possible new outbreaks, to find contacts of anybody who tests positive. You want to be under 1 percent. There are only five states that have a test positivity rate that's under 1 percent right now, and they're all in the northeast.

Vermont, New Hampshire, Maine, Massachusetts, and New York. Those are the only five states in the country with test positivity rates under 1 percent. A majority of states, 27 states plus Puerto Rico, have test positivity rates now of over 5 percent, which is quite bad, and that's most states. In this environment where we've got still tens of thousands of new cases every day and in most states things are getting worse and not better as we head into the fall and the winter and the colder weather, it's unnerving in this environment that we keep getting worse and weirder screw-ups from the CDC, which is until quite recently the world's gold standard public health agency.

But as Nancy Pelosi put it in her interview last hour with Chris Hayes here on this network, under the Trump administration, they've succeeded in essentially discrediting the CDC. And the CDC has played a part in its own demise by giving in to the Trump administration's meddling in their science. The latest weird one happened on Friday when almost nobody noticed but the CDC quietly posted some new advice on their website about how COVID is transmitted, how you can get it not just from somebody accidentally spitting on you when they cough or sneeze. CDC guidance posted quietly to their website on Friday noted that you can also get it through the air, through aerosolized droplets and tiny particles that hang in the air, not just because somebody directly in front of you is coughing or sneezing on you, but because somebody in your vicinity has just breathed or spoken or shouted or sung, creating aerosolized particles that hang in the air that you can then inhale and that can be a source of infection for you.

In July, more than 200 experts on aerosolized transmission wrote to the WHO, the World Health Organization, saying that that method of transmission, aerosolized transmission, should be explored and explained more carefully because if this virus is hanging around in the air after somebody shouts or sings or breathes it out in that space, then six feet of distance between people might not be enough. Then being inside in poorly ventilated environments itself might be a way to transmit the virus whether or not you are six feet apart from the people inside that space.

Now, the WHO this summer basically concurred with those experts' opinion and engaged with that science, but before Friday, the CDC hadn't said anything about it. On Friday, they quietly posted this new stuff on their website without saying anything to anyone about the fact they were doing it.

Nobody really noticed until CNN yesterday posted a story about this new language on the CNN's website. Once CNN did that, the CDC promptly took it down and say they didn't actually mean to put that new guidance up on their website about how COVID is transmitted. It was all a big mistake, which is not supposed to happen at a rinky-dink public health organization, let alone the one that is supposed to be the world's gold standard.

But with the way the CDC has been pushed around and has had their scientific work corrupted and chopped up and delayed and changed by the Trump administration to meet Trump administration political realities, nobody knows who to believe anymore when it comes to their public health advice, including from the agency that used to be the best in the world, that used to be our national public health agency. Their credibility has been dragged down to the level of the Trump administration's credibility because they've allowed themselves to be corrupted by the president, the White House, and his political meddlers.

And so, as we're trying to survive this pandemic and as we try to figure out what to do, you know, we muddle through. We try to read the science ourselves. We try to figure it out as best we can. We even try to hold our own commemorations to mark hundreds of thousands of our fellow Americans being killed. We're just doing the stuff ourselves because the government isn't.

And that holds for a lot of the most important things in our country right now. Tonight, we're going to talk with one of the founders of the Indivisible movement. You'll remember that they were one of the forces on the progressive side of the political ledger that mobilized people to save the Affordable Care Act when the Trump administration and Republicans in Congress were hell-bent on getting rid of it. They were also a key part of mobilizing the Democratic get out the vote efforts in 2018 where right after the Brett Kavanaugh disastrous Supreme Court confirmation, disastrous in terms of the credibility of the court and the credibility of the confirmation process, you'll remember that was just before the 2018 elections. And in the 2018 elections, the Democrats flipped the House and took control and made Nancy Pelosi speaker again.

The Indivisible movement has proven to be sort of a Trump era specialist in terms of turning people's anxiety and upset into practical political action. So we're going to talk with one of the indivisible movement founders tonight.

We're also going to talk with a senator who's on the judiciary committee tonight, which is where the fight will be first waged. And we're going to speak with Senator Elizabeth Warren. She'll be here next, about what's going to happen now that Republicans are going to try to ram through a Supreme Court nominee for the Ruth Bader Ginsburg seat in just these last few weeks before the election.

Nobody is being blunt or hiding the ball here. President Trump told the Fox News Channel this morning that he wants a justice confirmed quickly specifically so that justice on the Supreme Court will vote to keep him in power in the election results he's already planning on contesting in November. The president said this morning on the Fox News Channel, quote: We should act quickly because we're going to have probably election things involved here, you know, because of the fake ballots that they'll be sending out.

The president is talking openly about wanting to confirm a Supreme Court justice before the election so that Supreme Court justice can vote on the court to give him the presidency, because the president already says the election is invalid. The way, President Trump is already talking about how he's going to choose Justice Ginsburg's successor is perhaps the best evidence about why Justice Ginsburg felt the way we know she felt about the process of choosing her successor on the court.

This interview with Justice Ginsburg's granddaughter was just posted today by the BBC. Watch.


CLARA SPERA, RBG'S GRANDDAUGHTER: I asked her if there was anything she wanted to say to the public, to anyone, that wasn't already out there, and she said there was. And I pulled out my computer, and she dictated the following sentence to me.

She said: My most fervent wish is that I will not be replaced until a new president is installed.

And I read it back to her. She was very happy with that. And when I asked her, is that it? Is there anything else you'd like to say? She said, the rest of my work is a matter of public record. So that was all she wanted to add.


MADDOW: My most fervent wish is that I will not be replaced until a new president is installed. Justice Ginsburg's granddaughter, Clara Spera, to whom that statement was dictated, speaking with the BBC today about hearing that from her grandmother, about her grandmother asking her to record that. Otherwise, she said, my work is a matter of public record.

Republican senators who in 2016 were absolutely unequivocal about how principled they are and how a Supreme Court nominee should not be confirmed, should not be voted on if a court vacancy arrives in an election year, they're all now saying, hey, forget that. Yeah, let's ram this through. We're seeing that from Senator Chuck Grassley, and Senator Lindsey Graham, and Senator Cory Gardner and all of the other ones who came out against a Supreme Court nominee being confirmed in 2016.

So far, only Lisa Collins -- excuse me, Lisa Murkowski and Susan Collins have said the Republicans should stick to the rule they set in 2016 and not vote to confirm a nominee before the election. The Republicans breaking all their own supposed rules and just flat-out making this power grab even though they said explicitly they wouldn't do it, we're going to be talking about that tonight. We're going to be talking about Democrats' options to try to stop them.

But is there something to learn about this fight from the woman whose passing has brought it on? When the case about the Virginia Military Institute came up to the Supreme Court in the mid-90s, that was a very high profile case with a lot of emotion around it, and there was a real worry about whether the Supreme Court could definitively rule on that case, and the question of whether VMI would have to start admitting female cadets. There was worry about whether the Supreme Court could definitively consider that matter specifically because one justice couldn't be part of those deliberations.

Justice Clarence Thomas had a son enrolled at VMI at the time, and so he recused himself from having anything to do with that case. And that means instead of nine justices considering the VMI case, there were eight, and that could have meant a 4-4 tie among the justices, in which case the Supreme Court's ruling wouldn't affect anything, and a lower court's ruling would still stand, and VMI's position would be all the more precarious.

It was a very real possibility and a very heated, very high profile case. The VMI case came up before the court, and despite all those worries, it did not end up being a 4-4 decision. It ended up being 7-1 with Justice Ruth Bader Ginsburg writing for the majority, writing in part, quote, generalizations about the way women are, estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.

Notably, she says, Virginia never asserted that VMI's method of education suits most men either, 7-1. Only Justice Scalia dissented.

And in 2017, roughly 20 years after that opinion, Justice Ginsburg went to VMI to go talk about the impact of that decision, to give the female cadets at VMI a chance to lay eyes on her, the woman whose ruling made their careers at VMI possible.

Justice Ginsburg at that event also talked about what Scalia, her great friend, Antonin Scalia, really didn't get in his dissent.


HANNAH GILLAN, FEMALE CADET: I wouldn't have been here without her.

REPORTER: This is the face of a female cadet. Hannah Gillan was born the same year women joined the rat line.

GILLAN: I came here, and they have had female leaders since the first class graduated, and they have had these pioneers.

REPORTER: Ginsburg, who was one of only nine women in her Harvard law class of 500, has that in common with those first women to set foot on the parade ground. In his lone dissent, her friend the late Justice Antonin Scalia said the decision would kill VMI.

JUSTICE RUTH BADER GINSBURG, U.S. SUPREME COURT: I knew it wouldn't. It would make VMI a better place.


REPORTER: A cadet presented Ginsburg with a gift. Back in 1997, she received a letter and a keydet pin from a VMI alum. You could see her wearing it from the audience.

UNIDENTIFIED FEMALE: The unenclosed was my mother's. She is dead now. We want to you have it. In an abstract way, you will be mother of VMI's first and succeeding women graduates.


MADDOW: The keydet. It was a little key, a little pin that was given to the mothers of VMI cadets when they graduated from that military school. Twenty years on from her ruling that allowed women to attend VMI, Justice Ginsburg wore a keydet, one of those key pins that had been sent to her from a male cadet who graduated in the '60s who sent her that pin after his own mother died.

Joining us now is Lisa Beattie Frelinghuysen. She was a former clerk for Justice Ginsburg. She clerked for her during the VMI case. She's now a gender equality and women's health advocate.

Ms. Frelinghuysen, I really appreciate you being here tonight. Thanks for making time.


MADDOW: As you -- as you see the whole country talking about Justice Ginsburg -- and the country's been thinking about her a lot and talking about her for a long time. But now in the wake of her passing, thinking about what's going to happen on the court, thinking about the legacy that she leaves, I wanted to talk to you because I wanted to know from somebody who worked so closely with her and knew her in her later years as well, what you think -- what you're thinking about her legacy and what you think the rest of the country might not know?

FRELINGHUYSEN: Well, I do think that the country knows a lot about her legacy now thanks to the Notorious RBG and the RBG documentary and certainly, you know, the way that she strategically brought women's rights cases before the Supreme Court as a young advocate was -- was tremendous, establishing gender equality, you know, in a world that had not been -- it had not been legally done before. So, that -- that is a tremendous piece of her legacy that I think most people know.

I also think that, you know, later in life as she -- as the court became more -- as the moderates of the court, Kennedy, O'Connor, Souter, left the bench and the high court became more conservative, you know, she really exercised her dissenting voice in a way that was extremely powerful, either speaking directly to Congress in the Lilly Ledbetter case or, you know, speaking to the public in a way that they could understand and would inspire them to act in the Shelby dissent, for example.

I think that her exercising that new voice was something tremendous, the strength and resistance.

And then the last thing I would say, you know, that I think she left -- she sort of stepped out of her own personality a little bit which was quite reserved and scholarly and quiet, never seeking the limelight and, you know, sort of reluctantly agreed to be a part of a documentary and at a time when the world was, I think, craving a hero and craving inspiration, agreed to have her story told. And then, you know, as the country just admired her so, she went around the country speaking at schools, you know, with her pocket constitution, inspiring all generations. And I think that was a wonderful side of her that really developed very late in life.

MADDOW: Part of the reason I wanted to talk with you, Lisa, is that the VMI opinion was so important, and I know as a clerk, you were involved in -- that's when you were in chambers, and so you were there at that time. Obviously everybody knows how important that was.

But I wonder in terms of her sort of strategic thinking and her thinking about the constitution, if there is something for us to learn from in terms of her scholarship, in terms of her role in important opinions like that, the way that she approached big, heated, complicated fights where everybody thought they knew how the partisan lines would fall.


MADDOW: It strikes me now even looking back at that that it was 7-1. It wasn't 4-4. She was able to bring about something big with unlikely allies in a place where people absolutely thought they would be deadlocked.

Does that sort of give us any strategic opening in terms of thinking about what happens now with her succession on the court?

FRELINGHUYSEN: So I'll answer the first part of your question, and I think you're right on. That was not a slam dunk of a 7-1 opinion when that case came to the court, you know, and VMI had done everything it could to not go coed, to keep women out, including establishing a separate but equal school for women, which was separate but obviously not equal.

You know, one of the things she did in that case was to highlight how unique that institution was. It had a citizen soldier program. You lived in the barracks, the rat line training, a huge alumni, four-star generals. It was a unique institution.

And that concept was important in terms of understanding why equality demanded that women should have access to this opportunity. And I think that, you know, that helped maybe convince some of her more conservative colleagues to join a women's rights forum for the first time.

She's a very careful writer. She thinks a great deal about -- you know, as the justices go around the table in their judicial conference following the oral arguments stating their opinions of the case from most senior to least senior, she really listened to each justice and their thoughts in order to hold a big majority. She felt it was very important in that case.

The other thing that she did was to look to Justice O'Connor's -- the language in previous opinions, including Hodgson, and found the phrase "exceedingly persuasive justification." So when a state wants to have a gender classification and exclude women, they would have to have an exceedingly persuasive justification to do that. That's a very high hurdle. So, she sort of gently elevated the hurdle in gender equality cases.

MADDOW: Lisa Beattie Frelinghuysen, one of Justice Ruth Bader Ginsburg's law clerks, thank you so much for talking to us tonight. I feel like part of mourning the passage of Justice Ginsburg is understanding and respecting and sort of paying forward her legacy in terms -- including her legacy as a thinker at a time when a lot of people are trying to think themselves out of problems that we've got coming down the pike. Thank you for helping us understand it.

FRELINGHUYSEN: My pleasure, Rachel. Thank you for having me.

MADDOW: All right. We've got much more ahead tonight.

As you know, Justice Ginsburg having passed on Friday, there will be some -- there will be memorials. There will be -- those are affected in terms of COVID, in terms of how much that's going to be in person and how many people are going to be allowed in person to pay their respects and where that will happen.

We do at this point, though, expect she will be laying in state at the U.S. Capitol, and I believe -- I will stand corrected if this is wrong, but I believe that will make her the first woman to ever lay in state at the U.S. capitol ever.

All right. Much more ahead tonight. Senator Elizabeth Warren joins us next. Stay with us.



SEN. ELIZABETH WARREN (D-MA): Today, Mitch McConnell and his henchmen believe that they can ram through a Supreme Court justice only 45 days from the election. Mitch McConnell believes that this fight is over. What Mitch McConnell does not understand is this fight has just begun.


MADDOW: Senator Elizabeth Warren speaking at Saturday night's candlelight vigil for Justice Ruth Bader Ginsburg on the steps of the Supreme Court.

Joining us now is Senator Elizabeth Warren of Massachusetts, former Democratic candidate for president.

Senator, thank you so much for being with us tonight. It's a real pleasure to have you here.

WARREN: Thank you. It's good to be here with you.

MADDOW: So, you were impassioned, and you had your jaw set in those comments, and you absolutely had all of the other people there with you.

What did you mean by the fight is just beginning? How can you characterize for us how the fight is going to go?

WARREN: Well, let's start with what's on the line. You already started talking about this but recognize we're talking about a Supreme Court nomination and confirmation that could touch the lives of every single person in this country. Start with health care.

We know that the Affordable Care Act that expanded health care to tens of millions of Americans, that protects people who have pre-existing conditions, who keeps people 26 and younger on their parents' policies, we know that went all the way to the Supreme Court. And by a decision of 5-4, the Supreme Court said we're hanging on to it. It's constitutional.

So then the Republicans said, darn, we can't get rid of this thing in the courts. We're going to take it to Congress.

So, as soon as Donald Trump was sworn in and the Republicans had control of the House, control of the Senate, and control of the White House, they said we're going to repeal the Affordable Care Act. We're going to take away protection for people with pre-existing conditions. We're going to repeal health care coverage for millions of Americans, and they lost again. That was the vote in 2016.

And now they're trying again through the courts, and this November, the Affordable Care Act will be in front of the United States Supreme Court. They will have to decide if it is constitutional, and what Donald Trump and Mitch McConnell are hoping is if they can get in another justice, what was 5-4 to say that, of course, the Affordable Care Act is constitutional, they may now be able to flip to 5-4 the other way, denying millions of people access to health care and cutting out people who have diabetes, people who have had cancer, people who have had serious pre-existing conditions. And that just gets us started with what's at stake here.

MADDOW: Do you believe that Roe versus Wade will be overturned if a Trump nominee is put on the court? This is something that we've described and talked about, I think, worried over and fought about for a generation now, since Roe has been in the precarious position that it's been in on the court. It seems to me now that the math is unequivocal, that if there is a Trump nominee on the court because he said he will only nominate justices who he believes will overturn Roe, that it's basically a sure thing that the right to an abortion will disappear the first time they can get a case up there to do it?

WARREN: Well, I think it might be. That's why we need to fight.

This is about women's health care. This is about women's ability to make a decision over their own bodies.

And, you know, we've already heard from senators who have said they're not voting for anyone who hasn't made it clear they're willing to overturn Roe versus Wade. That's another piece of what is at stake here.

And understand on health care, on Roe versus Wade, on the right to join a union, on environmental issues, climate change in this country, on gun safety, on every one of these issues, what the Republicans have done is they have tilted the Supreme Court. They want to tilt it further, so that it doesn't reflect the values of the majority of Americans.

Most Americans, about three out of four Americans want to see Roe versus Wade preserved as the law of the land, want to see people have access to health care coverage, want to see people able to join a union, employees to be able to come together and bargain together, want to see our Dreamers protected.

And yet by carefully filtering who gets nominated to the United States Supreme Court, by stealing a second seat on the United States Supreme Court, what Donald Trump and the Republicans are planning to do is to have that court impose a will on the American people that is not who we are and not the America we want to be.

MADDOW: What do you think is within the arsenal of Senate Democrats to try to stop this from happening? I know that Senate minority leader, Senate Democratic Leader Chuck Schumer has said nothing is off the table if they force through this nomination, if they get it done.

What options do you think that you have tactically in order to try to stop them from doing what they want to do?

WARREN: Well, Chuck is right. As he said, everything should be on the table. And we will use everything we've got.

But understand this. Think back to the Affordable Care Act fight in 2017. I still remember when Donald Trump was sworn in, I went home that night, and I said, this is it.

They could repeal health care by next Friday. They've got the House. They've got the Senate. They've got the White House. They could get rid of it all.

And sure enough, man, they rolled through that repeal in the House of Representatives. Do you remember that, Rachel? And then they all celebrated afterwards, high five, brewskis, right? Because what's not to celebrate about taking away health care from tens of millions of people?

And then what happened?

Enough people across this country made their voices heard. Enough people showed up, mamas with little babies with complex medical needs, people in their wheelchairs who rolled up, people who said, my voice will be heard in this Congress. These senators will hear from me.

Enough people did that, that we scraped together the votes and saved health care for tens of millions of people. And look where we are now. We are in the middle of a pandemic, and Republicans want to take away health care from people, and they want to make COVID a pre-existing condition.

This isn't right. This isn't who we want to be as a people. That's why this fight is important.

But you asked me, what's our biggest tool? The biggest tool is not the rules of the Senate. The biggest tool is the people in this country who make their voices heard.

MADDOW: Senator Elizabeth Warren of the great state of Massachusetts, that point on which you landed is the exact place that I am in terms of thinking about this tactically as well. I think that is the key insight here in terms of what happens next here.

This is not a Washington game. It's now a national game. But this is -- this is a fascinating crucible to be right in the middle of.

Senator, thank you for helping us understand it tonight. Happy to have you here.

WARREN: Thank you. It's good to be with you. Stay in the fight.

MADDOW: All right. We've got much more ahead here, including the person who helped organize that protest that Senator Warren was just talking about there.

Stay with us.



SEN. LINDSEY GRAHAM (R-SC): I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let's let the next president, whoever it might be, make that nomination, and you could use my words against me, and you'd be absolutely right.

If an opening comes in the last year of President Trump's term and the primary process has started, we'll wait until the next election. And I've got a pretty good chance of being the --

UNIDENTIFIED MALE: You're on the record.



GRAHAM: Hold the tape.


MADDOIW: Hold the tape. Nevertheless, this weekend that Senator, Senator Graham, said he's happy to go ahead with plans to fill this vacancy on the Supreme Court. Never mind what he said in the past.

Tonight, Lindsey Graham's predecessor as Judiciary Committee chairman, Iowa Senator Chuck Grassley, confirmed that he too now supports filling the Supreme Court vacancy as soon as possible in stark contrast to exactly what he said about exactly this scenario when asked about it in 2016 and in 2018.


SEN. CHUCK GRASSLEY (R-IA): The people deserve to be heard, and they should be allowed to decide through their vote for the next president the type of person that should be on the Supreme Court. As I've stated previously, this is a reasonable approach. It is a fair approach.

You can't have one rule for Democrat presidents and another rule for Republican presidents.


MADDOW: Oh, that's an interesting concept. That sentiment was echoed in a letter addressed to Lindsey Graham today, signed by all ten Democratic members of the Senate Judiciary Committee. It says, quote: There cannot be one set of rules for a Republican president and one set for a Democratic president, and considering a nominee before the next inauguration would be wholly inappropriate. We urge you to adhere to your own words and commit publicly that you won't consider any nominee to fill Justice Ginsburg's seat until after the next president is inaugurated.

Regardless of how many of them publicly committed to that kind of an approach, it seems like Republican senators writ large have no compunction whatsoever about going back on their own word on this.

How do you move forward in a circumstance where that's how your colleagues are treating this?

Well, joining us now is Rhode Island's U.S. senator, member of the Judiciary Committee, Senator Sheldon Whitehouse.

Senator, it's great to see you. Thanks for making time to be here tonight.

SEN. SHELDON WHITEHOUSE (D-RI): Glad to be with you.

MADDOW: So hypocrisy is like vitamin H right now in politics, and it seems like people are trying to overdose on it. Republicans do not seem at all bothered about being called hypocrites and demonstrating hypocrisy in terms of their previous stated principles here.

How does that affect how you and your colleagues are going to approach this fight?

WHITEHOUSE: Well, I hope we think of it as a clue. Why all the hypocrisy? Why all the mendacity? Why has Mitch McConnell eliminated legislation in the Senate? Why all of the secrecy, all the attacks?

I think that it points to the operation that has been run for some time that unfortunately we as Democrats have not paid enough attention to that is driving this behavior. The biggest donors behind the Republican Party want to control the court, and they want that more than anything else.

That's why they stuck with Kavanaugh through his troubles. That's why they blew out Garland for Gorsuch. And behind all of this is a fair amount of reporting about hundreds of millions of dollars being spent and phony front groups being set up, all of the earmarks of a covert operation except that it's being run against our own government.

So focusing on that, I think ought to give us some leverage and ought to help clue in the American public to what's really going on here. These aren't colleagues who are just doing this because it's their nature. They're doing it because of pressure, and we need to respond to that and out this group that is behind all this mischief.

MADDOW: And, Senator, you've been instrumental in trying to talk about this dynamic at work not just for the Supreme Court but this dynamic at work for judicial nominations throughout the federal court system that explain why Mitch McConnell in particular and Republicans in general have prioritized judicial nominations, why they have done that and been willing to look away from every other thing that Trump has been able to do for them.

What do you think the public should understand about the real forces at work here? What's the way that you pitch this? What's your elevator pitch for Americans who don't understand this dynamic in terms of who we should see as really calling the shots here?

WHITEHOUSE: Well, the public view in many cases is that Republicans want conservative judges. Democrats want liberal judges. Both of them like to quarrel about it, and to hell with both of them.

But the fact of the matter is that a small group of very big donor interests powered up by Citizens United dark money -- this is a new phenomenon, Citizens United -- has now the power to pull strings and to drive behavior, and they've determined that they want to control the court because the court, as Senator Warren said, will do undemocratic things.

A court with late time appointment will do things that legislators would never vote for, like, for instance, unlimited money into politics from corporations. Nobody would vote for that. Control the court and they deliver it.

At this point, they're up to 80 of this partisan 5-4 decisions under Roberts, and we've looked at the worst ones, but we've missed the pattern. There's a pattern here, and there is an organization behind it. And if we don't take that on, we are making a huge strategic mistake.

MADDOW: Rhode Island U.S. Senator Sheldon Whitehouse, member of the Judiciary Committee, you are going to be right in the heart of this fight, sir.


MADDOW: Thanks for being here tonight. Thank you for helping us understand. All right.

WHITEHOUSE: Thanks, Rachel.

MADDOW: Up here next tonight, something we have been talking about over the course of this hour. The only thing known to work to stop Republicans when they're hell-bent from both branches of government on getting their way and it feels like Democrats don't have the power to stop them, the one thing that does work is the subject of our next segment.

We'll be right back.


MADDOW: The Republican plan to repeal Obamacare, to repeal the Affordable Care Act in 2017, would have resulted in more than 20 million Americans losing their health insurance. Just like Senator Warren was saying earlier this hour, in 2017 with Republicans in fresh control of the White House and the House and the Senate, it absolutely seemed like a done deal that they would pass a law to take away health insurance from tens of millions of people.

But then something started to happen. The constituents of these members of Congress and senators, they started showing up bigly to tell them to abandon that bill and that plan. People held die-ins on the ground outside congressional offices in their home districts. People held sit-ins in the lobbies of their senator's district offices.

The group Indivisible and other grassroots organizers, they chant channeled all that fear and worry and human outrage about Republican efforts to take health care away and they turn it into constructive action. And it worked. The Republican plan which was absolutely a done deal to scrap the Affordable Care Act, it died in the Senate without enough Republicans to support their party's bill.

That's the idea behind this kind of organizing. The trick is not to pressure Congress in some sort of macro sense, but for people to push their own senators and their own members of Congress individually. Find out who your member of Congress is and who your senators are.

Put their office on your speed dial. Show up at their town halls. Force them to have town halls. Hold up signs outside their office windows. Be relentless.

Pressure works. It worked in 2017 to help save the Affordable Care Act when nothing else in politics says that should have worked.

Now with that next big fight under way, Indivisible is a group that is breaking out that same playbook once again.

Joining us now is Ezra Levin, co-executive director of Indivisible.

Ezra, it's nice to see you. Thanks for being here tonight.

EZRA LEVIN, INDIVISIBLE: Great to be here tonight.

MADDOW: So we've been talking tonight with a couple of Democratic senators and others about what tactics are available to the Democrats to try to stop Trump from putting a nominee on the court before the election. That's -- those are Washington-centric questions.

Should we see this as a Washington-centric fight, or is this one of those fights that's going to happen all over the country?

LEVIN: Yeah, the sad fact of the matter is that Mitch McConnell and the Republicans have the power to appoint a new justice, to confirm a new justice. They can indeed do that. But remember as you just covered, they had the power back in 2017 to repeal the Affordable Care Act.

The reason why they didn't do that was because people showed up like you said, all throughout the country to tell their individual senators, represent me. That's what's got to happen right now.

Look, there have been 200,000 deaths from COVID, and Mitch McConnell now, after doing nothing for months and months and months, can't move fast enough to entrench his power by appointing another justice. But the good news is Mitch McConnell is not master of the universe or even master of the Senate. In fact, he has to corral all of his compatriots in the Senate to actually vote with him.

And if you can count to four, you can figure out our legislative strategy. We need four Senate Republicans to vote for the rule of law, to actually uphold the Constitution and protect the courts in the lodge term. We've got two already. We need two more. This is going to be a hard fight, but it's not an impossible fight, and that's why we're in it.

MADDOW: And talk to me, Ezra, about your tactic the strategy. Obviously, one of the key insights that you and your colleagues at indivisible brought to bear on the fights of the early Trump presidency was this idea that even if up have a Democratic senator or even if you've got a relatively progressive or moderate member, if you want to stop the conservative program in the Congress, you have to target your own member. You have to target the person who sees you as a constituent to not just vote the right way but to hold the line, to create the sort of wall that's going to be needed to stop the conservatives doing what they want.

Is it the same approach here, or do you want, you know, everybody in the country to call Joni Ernst or to call Cory Gardner or to call one of these other senators who could potentially be the decisive vote here?

LEVIN: Yeah. It's a great point, Rachel. So unless you live in Iowa, you shouldn't call Joni Ernst. Unless you live in Kentucky, you shouldn't call Mitch McConnell.

And that's because Mitch McConnell and Joni Ernst don't care what you think unless you live in their states. And that's not even a knock on Mitch McConnell and Joni Ernst, as much I, I'm not a big fan of theirs. It's just the fact that we live in a representative democracy, and that means your representation in Congress are your two senators, your one representative.

So it is really important to use your power, your constituent power, to focus on your own representatives. So, if you're looking for what to do, if you're focusing on this and you're worried for the future of our republic, I am too.

There is actually power you have in this moment. Specifically, Indivisible groups are doing two things in the next week.

One, this Friday, we know that Ruth Bader Ginsburg is lying in state at the U.S. capitol. We're not advising people make the trip out to the U.S. capitol to go to that event. We are asking folks and indivisible groups are being flowers or mementos to their Senate offices in their own states and saying, hey, this is what Ruth Bader Ginsburg means to me.

I would like you to represent me. Fight in the Senate for me, not Mitch McConnell or Donald Trump.

And, second, after you do that on Friday, after you show up in person at your own congressional district office, on Saturday, we are doing a national phone bank to flip the Senate. We had more voter contacts than literally ever before in the history of Indivisible on a single day, the day after Ruth Bader Ginsburg passed away by people who wanted to flip the Senate.

We need more phone bankers. We need to flip the Senate so that we can confirm a justice that can live up to the legacy that Ruth Bader Ginsburg lived up to.

MADDOW: Ezra Levin, the co-exclusive director of Indivisible -- Ezra, thanks for being here, helping us understand what you're doing. I appreciate it.

LEVIN: Thank you so much, Rachel.

MADDOW: All right. We'll be right back. Stay with us.


MADDOW: That is going to do it for us tonight. I'll see you again tomorrow night.


Good evening, Lawrence.


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