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tv   Caught on Camera  MSNBC  February 13, 2016 3:00pm-4:01pm PST

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how i grew up. i just knew how he grew up. very conservative, priest was the boss. the nuns took orders from the bishops and the priests and everything was very hire arkical, and you accepted it. and your families were very big on respect for authority, and they taught you respect for the teachers, for the priests, for anyone in authority, policemen, for example, for example believing in authority figures and in the regular order of things. i don't want to get too far here, but that's the way we're all brought up, and i'm sure he fit that to a "t." >> chris, i want to ask you, what the next steps are for the senate and the president, but i do want to update our viewers who are just joining us at the top of the hour. if you are just joining us, we have just learned this afternoon the passing of supreme court justice khalantonin scalia at t age of 79. his body was found at a resort in west texas, not too far from the mexico/u.s. border. he was known as the bench's
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conservative, fiery comments, he was known for, certainly, in and out of the courtroom. justice scalia, passing at the age of 79. chris, thanks for standing by. the next question, then, what might happen in the senate? what might the white house do next? >> i think the problem we have now is this whole contentious of our politics comes to the fore. needing 60 votes to get something through a filibuster, to crash a filibuster, is really hard to get. and now that you have a senate majority of republicans, my gosh, you're 15 short to start with. and so, you know, the idea of getting a democratic approved of chief justice, associate justice, through a republican senate is just under the current political rules of engagement, is almost unimaginable. it's almost like the president
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has to pick a conservative republican judge to get him through. so i guess, we're going to have an eight-judge court for a while. that's what it looks like. i don't know how we get around this. this is a very unpleasant and contentious situation we face right now. very hard. >> chris, i also want to bring in ari melber, msnbc's chief legal correspondent. ari melber will be moving us forward on the coverage this hour of this unfortunate news, ari. >> thank you, richard. and thank you to chris matthews, who i know we'll be hearing from again. we are here, witnessing this news, a seismic and unexpected event in the supreme court, justice antonin scalia on the court for 30 years, passing away. reactions pouring in from all over government and beyond. we're going to hear this hour from what the white house is saying, what several presidential candidates are saying, having weighed in. chief justice roberts putting out a statement. we have all of the latest. we go, fittingly, first, to our own justice correspondent, pete williams.
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pete, thank you for joining us on what is obviously a solemn day for those, like you, who have covered and witnessed justice scalia. what can you tell us today? >> well, it's just such a shock. he was considered to be in robust health. he is a man who loved the outdoors. he loved to fish and to hunt and he did so passionately, traveled around the country, making speeches, speaking to students, law seminars around the country. so he was a very active man at the age of 79. and he -- this is just such an unexpected thing. it's such a shock. he apparently died overnight when he was on vacation in texas at a guest ranch. he didn't show up for breakfast and they went to his room and apparently found him there. this is such an unexpected development, such a shock. he certainly was someone who enjoyed his service on the court, showed no signs of stepping down, and so there's the human part of this. he'll be very much missed by his
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colleagues. he was well liked, well respected by the other members of the court, a gregarious, friendly intellectual giant, and that's part of it, is the human part, the sad part for his wife and his family and his friends here, considerable following here in washington. so there's that aspect. but the other aspect now is something we've just been talking about, a, what's the president going to do about a nominee? i would be very surprised if the white house actually was prepared for this eventuality. certainly, you could say that any organized white house should be, but, i doubt that they expected that they would have another supreme court nomination before the president's term was over. so there's that question. >> pete, you mentioned what he was like. his activity, his fitness, his vigor, which is why this is such a shock to court watchers. you've had the seat that very few people have inside the
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courtroom. can you speak to us and for the viewers what justice scalia is like on the court, on the bench. clearly someone who had sharpness of mind. no evidence from any public aspect, that there was anything amiss with his mind or health here. >> no, you're right. the person about whom -- the discussion about health and service on the court as most often mentioned is ruth bader ginsburg. she was 82 and people were publicly calling for her to resign or step down from the court while president obama is still in office. and she basically said, i'm not doing that, i'm not going away. on the bench, justice scalia was among the most active questioners. he was always somebody who was fully participating in oral argument. sharp questions. sometimes humorous once. but he was very active on the bench in the oral arguments, asking questions. never showed any sign that he was slipping, either physically or mentally. that's why this is such a surprise. and ari, just to say the other part of what i was going to say
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earlier, now we have an eight-member court. it will go on, it will continue, it will hear the cases that are on the docket, which include such hot-button issues as abortion and the president's immigration policy, one aspect of obamacare, public-sector unions. there are some big questions yet to be heard and decided this term. and when you have only eight justices, it always creates the possibility of a tie, which means basically no decision. so, it casts a real shadow over the rest of this term, in addition, of course, to the human dimension of missing one of its most beloved members. >> pete, you raise such an important point. i want to ask you to break that down a little more. immediately the talk, when anytime a member of the court is no longer serving, either for retirement or for passing away, there is intense interest in their replacement. and yet you're pointing out there's something even more immediate that will affect the legal outcomes of those pending cases and a lot of people's lives. what you're saying is that when
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a member is gone, the work of the court continues, regardless, even with eight justices. walk us through, how will that work and the remainder of this term? >> and, right, it's happened before. justices get sick. they miss arguments. so -- or they take themselves off a case, because they have a conflict, a term you're familiar, they recuse themselves. we're certainly not unfamiliar with what it's like to hear a case with just eight justices. but it's unusual and there have been times in the court's history where a death leads to this, where you have only eight justices and the court's work goes on, but if a case is really close, and a lot of these cases are decided by 5-4 votes, and the conservative side might have the prevailing number, if justice scalia were there, and then he's gone, that leaves the possibility of a 4-4 tie. in the event of a 4-4 tie, it's as though the case never happened. >> right. >> the lower court decision remains standing. there's no value of precedent to
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what the supreme court does. what they say is the lower court's ruling is affirmed by an equally divided court, is the phrase they use. it's as though the case never happened, and that issue would have to come back again. so, it raises a real cloud over these cases and makes them much more difficult. remember when elena kagan first came to the supreme court a few terms ago, she had been in the solicitor general's office and she didn't sit in a lot of cases she was involved in at her work at justice, so we had just eight justices on a lot of cases when she first got there. so it's not unprecedented, it happens, but to have it now as the court was just about to get into the most sensitive part of the term is just cast a huge cloud over it. >> absolutely. pete williams, thank you for joining us on this busy day. we hope to hear more for you during our special coverage. we turn now by phone, yale
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university law professor, akyl amar. let's start with your recollection of justice scalia. >> thank you for having me. my condolences to the friends and family of justice scalia. he was a law professor on the court, and he had all sorts of ideas, the way all professors do, so he was of particular interest to me. as you've heard, he was a very gregarious and involuble person, with very strong views on a range of issues, some of which i very much agreed with. he cared about the text of the constitution and its history and original intent. he played a particularly important role in statutory construction. and i thought that the court should focus less on history and the more on the text of the statutes. and that's going to be an important legacy. but stepping back just one-half staff from justice scalia himself and thinking about the
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court itself, and how seismic, i think that was the word you used, a moment this is, for 44 years, since january 1972, the court has had a republican-appointed majority. the house has gone back and forth, the house of representatives, the senate has gone back and forth between the two parties, the presidency has traded hands multiple times, but from 1972 to the present moment, republican appointees have had a firm majority on the supreme court, and that could change over the next year. and that would be, you know, a very, very big, tectonic shift, basically, in the united states supreme court. >> we've been speaking to yale law professor akill amar. stay with us. we turn now to brian williams, who join us by phone and who has watched and chronicled this court for a very long time, for the 30 years justice scalia was on the bench. your thoughts on this extremely
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unexpected event on the supreme court, on the life and passing of justice scalia. >> well, it's monumental. it's enormous news for the balance of the court, obviously, for scalia's friends and family, on a more personal basis. it is a shocker coming as it does, when we're in the throws of an election and, i was unable, ari, to hear our previous guests and contributors and correspondents, i'm quite sure someone has pointed this out, but it has been a good, long wile since we've had an election that will determine the presidency, the balance of congress, and the balance of the court. we went into today with a 5-4 republican-appointed majority. the court tonight stands at 4-4. courts, as you know, can operate at 4-4. though not efficiently and not well. and of course, this will become a political question, sooner
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rather than later. to scalia himself, i think it was judge posner of the federal bench who called him the most influential over the past quarter century. i think i agree with that. i know that his opinions, the public life he allowed himself to lead, he was a favorite of audiences around the country, mostly conservatives, judiciary gatherings, but he rarely held back. he rarely held back in his very florid opinions. he got in direct conflicts with other justices of the court, but was also a charming person on the court, in person. and i'm sure others had referenced his friendship with justice ginsburg. he was very much a product of queens. he was very much a product of the roman catholic church.
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he enjoyed life and a good meal and a good glass of wine and good company. and he was very much an originalist. he liked, if possible, to apply the thoughts and the writings of the framers when he was determining a modern question before the court. >> i'll tell you, brian, as someone who's chronicled so many of these individuals, you know and you referred to it earlier, justice scalia had what some would just call "spunk." he was a judge and he was a careful jurist, but he brought a great deal of energy, of vitality to everything he did. his written opinions crackled and his in-person remarks and persona, there was one study of the court, brian, that noted, he had more responses of laughter written into the oral transcripts than any other judge. and it was not, of course, necessarily, because you could assume that the people on the court agreed with him, but
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clearly, they found him funnier than everyone else, brian. >> he had a biting sense of humor and he used it all the time. he is one of the great entertaining reasons to take advantage of the new liberal policy that allows us to hear the oral arguments before the court. i'm not sure you wanted to be council in his crosshairs, in front of that bench, but certainly compared to the more silent clarence thomas, justice scalia thought that oral argument was a time for sword fighting, if he saw fit. he did have a rapier sharp wit. he did have a quality intellect and i think his rival on the bench after his nomination from president reagan reminds me of commercial for southwest airlines, free to move about the country. i think his arrival on the bench said to what was often a
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conservative minority, feel free to move about the court, move about the constitution. let's take this, let's take what were many times our minority opinions, and he was given authorship of more than his share of opinions. let's take them out for a spin. >> you speak about that. and that goes to his undeniable impact on the law, on the cases and the precedence that lawyers are bound by today, that the government is bound by and that law students study. justice scalia was not simply a conservative in the sense of associated with conservative ideology, although many would argue you could read that in his opinions. he was, as you mentioned earlier, an originalist in that he emphasized, always, first, begin with the text. so if you're dealing with a law, look at the text of that law. not the hype and the energy and the arguments around it, look at the text. and in the case of the constitution, and you think about his case law on the second amendment, which many conservatives and other gun owners have cheered, his point
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was always, let's begin with the words we have. he argued, those original words, hence the term "originalism," would always guide us, even hundreds of years later, even better than any more free-wheeling search. >> he was a guy also of many conflicts. he could surprise you, as you know, ari, on topics like first amendment, he could take positions that would have to be considered liberal at times. and yet, that same amendment applied to press freedoms within those chambers. it was often said that as long as justice scalia was alive, there would never be television coverage allowed of supreme court arguments. those of us who are court buffs, amateurs at that, really have enjoyed listening to the audio these many years. >> you mentioned that, and you mentioned surprises. i'll bring up one that comes to mind, as the issues of national security and terror loom right
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now and loom in this election, as they have, and elections before. this was a justice, some may be surprised to remember, justice scalia, who went against the bush administration on some of the detention policyies even regarding accused terrorists, because he said, if the person is an american citizen, they have undeniable rights, period. and those cannot be diluted. which was, at the time, close after 9/11, something that some of his fellow republican appointees on the court did not agree with. as you say, to some, a surprise. >> to some, a surprise. and that was if quality of his intellect, and that is keeping with lovers of the law, who describe themselves as originalists. the problem with originalism is that it, the document, the constitution did not anticipate
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abortion, it did not anticipate the arrival of the iphone, it did not anticipate the arrival of jet travel. and many, many other topics, including police rights and pulling over a motorized vehicle, that we could not have anticipated. that's why we elect presidents and part of their job, i would say, second only to their right to conduct warfare, the chief importance of electing the president is how they re-make the judiciary. that's why we elect presidents. that's why they appoint judges that are in keeping with their ideology. >> so as we look then out to the presidential campaign and later in the hour, we're going to speak with some of our correspondents in the field, where the reaction has been pouring in, what do you expect to hear from presidential candidates? what do you think is proper, because one thing i notice, as compared to even recently is, there is an immediate, there is no grieving day, let alone
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grieving hour. there is an immediate political frisson here. for viewers just joining us, senator ted cruz, from the state of texas, where justice scalia there passed away, has already come out and said, he believes this president should not have this choice or this nominee, which would be normal. he believes it should wait until later. rachel maddow was on with us earlier, discussing that very point. that's an immediate and fairly unusual or severe response about what the appointment and political response should be, while we haven't reached yet the funeral. we haven't reached yet the memorials. >> it would be nice to live in a world that such discretion until after a period where justice scalia's body will presumably lie in state in the great haul of the supreme court building, but, of course, these discussions are happening now. in the immediate hours after he's died, apparently in the middle of this hunting trip in
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texas. i think there will be a lot of people who will have a lot to say on this. i think the president will wait the appropriate amount of time, one would imagine. one would also imagine we'll hear about this, we'll hear about this justice probably in opening statement form by all of the candidates on the stage tonight at the debate. there's currently a commercial on our very network in which our friend, chris matthews, talks about those he admires in political life, and he says, i like the lions, the ones that roar. and by chris matthews' standard and the standard of people who watch and enjoy the law, how it's practiced, and how it is preached to the american public, by any standard, i think we have to call antonin scalia of queens, new york, a lion. >> absolutely. and i have to say to you, brian, and you've anchored many of
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these type of events and developments, even when they carry, as this death does, sad news to many watching. a lot of news comes in. while you and i were just speaking about the political reaction, i just got a fresh announcement from senator mcconnell, the senate leader of republicans, saying, this vacancy should not be filled until there is a new president-elected. so the issue we were just coming from a very high place in the republican party, that view. brian williams, thank you very much for joining us. >> ari, a pleasure. thank you. we turn now, also by phone, to joe scarborough, host of "morning joe" here, a former member of the republican caucus in the house. and a student of all of these issues as well as a lawyer, i should mention. joe, you look at antonin scalia, he is someone who when many candidates speak with you, he's one of the first names they offer for the kind of jurisprudence and the kind of judging they would want to push on the court if they were elected. talk to us about your thoughts here on this day?
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>> ari, obviously, we all are thinking about justice scalia and his family. and the personal side of this tragedy. but it's going to be a massive impact on the debate tonight, on the republican race, and i think you're going to see a lot of republicans lining up behind what mitch mcconnell has said, what ted cruz has said. in part because, as you know, as well as me. ted cruz's mentor, john roberts, is just the latest in a long list of justices that many conservatives believe said one thing when they were, before they became justices, and another after they became justice justices. antonin scalia was the exception to that rule. and as you know, you can go back to earl warren, which i said was
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the biggest mistake he made in his life, justice brennan, liberal stalwarts appointed by republican justices. of course, author of roe v. wade, appointed by a republican. and we could go down the list, all the way through souter. and so conservatives, republicans, are more sensitive to this issue an anything else. they also understand the right to keep and bear arms, the way they interpret the second amendment is, you know, it's a 5-4 decision. so there are so many things that rest on who the next justice will be. >> you cite heller, the case that did establish the individual right the to bear arms. justice scalia muscularly argued in that opinion, that had always been true, that had always been what the text said, but the court had resisted it.
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talk to us about, especially from a conservative perspective, how that case would go differently if it were an obama nominee instead of justice scalia in that 5-4 case. >> well, i haven't read it in a while, but i believe justice breyer dissented, and all you have to do is read the dissent to see that the four justices at the senate did not believe that the second amendment meant that individuals had the right to keep and bear arms. >> right. and that scalia was aggressive and so you take a matter that matters a great deal, the passing of justice scalia puts that entire question up in the air. so you're going to see a lot of
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candidate candidates, not only tonight, but through the rest of this campaign and also in the senate talking about and putting tremendous pressure on any republican senator that would even think of allowing barack obama in his final year in office to appoint the fifth and deciding justice, on not only that issue, but how many other issues can you name that are 5-4 right now? this court has been split 5-4 for such a long time that justice kennedy has quietly been one of the most powerful people in this country. you can't really overstate the significance of this tragedy on republican politics tonight and throughout the rest of the campaign season. >> i think that's absolutely right. it is seismic. and we are talking about not just any seat, every seat, every lifetime appointment that a president makes, as you and i understand, is so significant. but we're talking about one of the seats in the balance, that you would take one of the most conservative seats, one of the
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advocates, as you say, for gun rights, for strict constructionalism, for a different view of roe v. wade, that he has written many times, he would overturn if he had the majority, you take that and imagine the possibility of appointing that with we know what some of president obama's appointees look like in justice kagan and justice sotomayor. it would be a huge shift. i wonder if you could speak, as well, about the power of something we haven't discussed as much this hour, which is justice scalia in dissent. i know when i was in law school, everyone -- it didn't matter your ideology, everyone enjoyed reading his dissents more than anyone else. and it was said he was often the most passionate and the most readable when he was basically going, you know, real hard against what he thought were major mistakes by what he often thought was a misguided liberal majority. >> exactly. but it seemed that he saves some
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of his most aggressive attacks for republican-appointed justices, who he did not feel were being sufficiently conservative in decisions. i do want to bring up one thing. brian is right. he was a lion. he roared like a lion. but for people who knew justice scalia, they said that that tough prose and his tough speaking style sometimes overshadowed what was in his personal life, you know, a guy that could actually write that and turn around and be great friends with ruth bader ginsburg and other liberals on the court. in fact, justice ginsburg told the story once of how after the decision was -- >> we've been listening to joe
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scarborough -- go ahead, joe. >> oh, no, i was just saying, on same-sex marriage, that they went out to an event and justice scalia belted out "the times, they are a changing." he was a guy that understood what his role was in the court. but he never let that get in the way of his friendship with justice ginsburg and other progressives. >> no, he didn't. and he also delighted in pushing people as a thinker. i mean, as a professorial person. if politics is full of double-speak and necessary compromise, the academy and the law school, in its best sense, is a pure search, a pure search for what things mean and what is truth and what it should be. i'm thinking of a very controversial area where in the debate, over what some call rights for gay americans and what others call a trampling on religious liberty, it's an issue that's alive and well right now, he referred very memorably and in a way that offended many
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people to what he called the anti, anti-homosexual agenda. and what he was referencing is not the idea that everyone in america should have certain rights, equal rights, which is debated, but that he felt that some institutions were actually becoming hostile to people, who for religious reasons, may have had other views. but he didn't just lay that out the way i just attempted to, joe. he said, anti, anti-homosexual agenda in a way that upset a lot of people, but he knew it. he was doing it on purpose to prod and to poke, you could argue that with lifetime tenure, you get to do that in public life, but talk about that style of argument, but it was something that made him really, really reviled by liberals, but really celebrated, as well. >> you know, unfortunately, the way justice scalia wrote before he got to the bench and after he got to the bench is something i'm afraid we're not going to see anymore, moving forward. at least not for a while.
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because, unfortunately, i say unfortunately, for many of the same reasons that you're talking about, what made him such a delight to read, after the bjork debacle, you had not only conservative, but also liberal justices much more careful about what they wrote, not only in court decisions, lower court decisions, but also in scholarly articles and law review articles. so in a sense, i'm afraid that scalia may be a throwback to a different era in the pre-bjork era, where you could make these arguments and still live to tell about it and actually be put on the supreme court. what's so interesting, though, is what you're talking about actually, i remember seeing in realtime, justice scalia when he was -- before, i believe it was joe biden who was running the judiciary committee, i believe it was in '85, perhaps, '84/'85, whenever he got on the court.
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i remember in realtime seeing him just be a dominant force in front of the judiciary committee. that was obviously run by the democratic party. by the democrats then. the democratic majority. and he was unapologetic. he was forceful, he was tough. he was a bruiser. and that line that brian was talking about, he was a lion from the first day that he sees national attention. and he's just the type of justice on the left or on the right that we probably aren't going to see again for quite some time, because, again, justices aren't able to be quite so brash these days and live to tell about it. >> so, joe, we've talked about his life, we've talked about his record, his influence, i'm going to ask you now about the politics. because, typically, there are bruising confirmation battles. you just mentioned the fallout
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over the bjork battles. but i can tell you right now in our newsroom, we're seeing a response with a speed and a severity that is unusual, to say the least, and i'll read to you what mitch mcconnell, leader of the senate republicans is saying. this is brand-new. he's saying, 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. basically say, let's not do the normal procedure. let's wait longer, on the hope that his side will get somebody in the white house. i'll read you what we also have is a brand-new response from senator reid saying, while he praises justice scalia as a brilliant man, the president can and should send the senate a nominee right away with so many important issues pending before the court, the senate has a responsibility to fill vacancies as soon as possible. who's right here? >> well, i'll leave that to the viewers and leave that to the
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voters to decide who's right and who's wrong. i can just tell you that when i heard the news, i was shocked and i was obviously saddened, because i'm a conservative, i'm a lawyer and like you, i had always loved reading scalia's writings, and especially his dissents. but immediately after that, it immediately hit me, this is going to be a very ugly year, politically. there is no way that a conservative running for president of the united states is going to be able to say anything but, we need the next president of the united states to select a justice. and if you're a democrat and you're running for office, you are obviously going to be outraged that they would hold the president's -- they would hold the president's nominee. >> but you think that's the new line, joe?
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that's interesting in and of itself, and you know these issues as well as anyone with regard to what a lot of conservatives are thinking and the complex electoral politics in this unusual presidential race. that's not the old line. i think you and i would agree, that wasn't the old line. it was "fight like hell." it was, try to get an influence on it or get your person in there, or maybe vote down someone you didn't like. but you're saying, your view of where things are now is the line for conservatives running for office would be, wait. >> so think about how ugly the fight was on the gun issue after newtown. and i remember actually taking this on, on the show quite a bit. supporting background checks, enhanced background checks, closing the gun loophole. this is a position that wayne lapierre and the nra supported 10, 11 years ago. and yet after newtown, they were
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willing to go to the mats and fight to the death to kill that. now fast forward to where we are today. and by the way, that's -- that was a progression that 90% of americans supported then and 90% of americans support now. and yet they were able to freeze not only republicans, but democratic senators like heidi hidekamp, over an issue that the nra supported over a decade ago. now you find yourself in a position where if you're a senator, getting calls from the nra and a lot of constituent who is understand, as we said before, heller rides on a 4-4 vote. justice scalia was the wrong voice, saying that for the first time the second amendment said what conservatives had long believed the second amendment said. i cannot imagine any scenario by which a republican senator and democratic senators, in fact, like heidi hidekamp and others
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who depend on the nra for support, i can't imagine any scenario where they would do anything but vote no on a justice that they believed would cast the deciding vote, overturning heller and making the second amendment mean that the federal government -- well, just making the second amendment be more about militias than actually americans having the right to bear arms. and i do have to say, just for people that are listening now or watching now, obviously, as you and i know, the heller decision was actually quite limited. it said, you had a right to have a handgun in your house to protect your family. heller did not mean what ted cruz and the nra said heller means. >> almost what they wish it meant. >> as you know, and as you've said before, it was a landmark
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decision for the nra and for gun rights advocates. and we haven't even talked about abortion, which is a 45-4 issue as well, which ted cruz and marco rubio -- i mean, marco rubio who doesn't even believe in an exception for incest, rape, or the life of the mother. marco rubio wants to select the next justice, who would be the deciding vote to overturn roe v. wade. so you have the most contentious issues in america that are suddenly brought to the forefront with the passing, the sudden and tragic passing of justice scalia and it is going to make for, sadly, a -- it's going to poison a political landscape that is already, you and i believe, too poisoned. >> i think that's well-chosen words and certainly the other side of this, we've been speaking with joe scarborough here from "morning joe," about what is tragic news for justice
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scalia, his friends and family, and our thoughts and prayers go out to them, and what is, obviously, for a man who led a very influential public life, a big matter of public import and the immediate political scuffling over his potential replacement, what would be president obama's third nominee to the supreme court. i want to thank joe scarborough, my colleague, for joining us on this day. >> thank you, ari. we'll continue to cover this here. live special breaking coverage on msnbc on a momentous day for the supreme court. we have richard lui joining me, my colleague in the newsroom, with some updates and reaction. hi, richard. >> ari, you were mentioning the longest serving justice for the supreme court. 29 years, 4 months, 18 days since the day he began on the court, until this news, this unfortunate and very sad news for the family. that's 10,732 days that justice scalia was part of the supreme court, until this sad news, as you were mentioning, maureen, his wife, nine children left
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behind. and responses have shared that complexity that you've been discussing so far. not only the sadness and the unfortunate, now, plans that the family have to think about going forward, but also, the plans that will happen politically, as well as those that are happening in the senate and the white house, in terms of naming a replacement. so marco rubio, which you and joe scarborough were just talking about, issuing a statement, and joe was mentioning how marco rubio would want to be part of that decision for a new justice. he's -- marco rubio is saying this, in his statement and reaction to scalia's passing. quote, today our nation has suffered a deep loss. justice scalia was one of the most consequential americans in our history and a brilliant legal mind, who served with only one objective, to interpret and defend the constitution as written. one of the greatest honors in my life was to attend oral arguments during town of greece v. galloway and see justice scalia eloquently defend
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religious freedom. i will hold that memory forever. the next president must nominate a justice who will continue justice scalia's unwavering belief, and the founding principles that we hold the dear. jeannette and i mourn the loss of justice scalia and our thoughts and prayers are with his wife, maureen, and his family, end quote. and ari, as you see there, he was mentioning that the next president, marco rubio was, in his statement, must nominate justice. and so he was hoping that that will be the case, though will see what happens in these uncertain times. u.s. senator chuck schumer from the other side of the political aisle, if you will, saying this. quote, this is sad news, indeed. while i disagreed with him on so many issues, justice scalia was a brilliant man with a probing mind, he was a great son of queens, with a genuine joy of life, end quote. so democratic senator chuck schumer from new york, sharing the sadness and the loss of
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justice scalia. ari, those are just some of the responses, and you'll see them too. they've been streaming in on this sad news that we're delivering today. >> richard, let me speak with you about that a minute longer. i was just speaking with our own joe scarborough about the politics of this. this is one of those days where people have an immediate reaction, if you've worked in law or politics or journalism, anywhere in public national life, you have some thoughts about justice scalia. so you mourn him, and you think about that. you think about him as a person, having been in that courtroom, having covered these cases, as you and i have. but it goes right beyond that, immediately, to these reactions. i can tell you, sitting here and covering this, this is not normal. already, a few hours in, we are in an abnormal meeperiod. maybe that's not a surprise, we have a abnormal race going according to some of the front-runners and a poisoned politics in washington. ting that's an observation, not an opinion, when you look at how it works and somehow it works to
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get normal things passed. let alone something this monumental. it's not a total surprise, but i want to say and get some of your thoughts on this, what do you think of a situation where unlike most other vacancies, we immediately have a call by the other political party, the one that runs the congress saying, no, the president shouldn't even be able to appoint someone at all. this should wait until after the election. >> and ari, i think you hit it so well, because the raeactions reverberate like rings on a tree. and although we see his family's reaction, which is most important, there is that that is happening right now in the senate, in the white house. and then you have the story line of america. and while i did not attend law school, as you so well remember, growing up as a student in the united states and learning of the three branches and losing one of our supreme court justices, who served longer than presidents, right? serving 30 years, someone that we have come to know, that that
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branch of government, these nine individuals that discern what is constitutional and what is not. and so i think, when we think of those rings, what this means for america and how will they be discussing it at the dinner table tonight? what will be the story lines they will remember. whether it involves the controversial issues of abortion, the controversial issues of gun rights, will it be that tenner point, or will it be the loss of somebody who served our country for three decades, longest serving, as i was mentioning, when we were just -- >> right. >> talking a moment ago. >> and i want to come back to you. i'm learning we have senator lindsey graham, who's going to join us. richard, i'll come back to you, as we've both been reporting this throughout the day. we turn now to senator lindsey grah graham. thank you for joining us. your though thoughts on justic scalia's passing? >> one, i'm sad because he was my friend.
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he was a great guy, a lot of friend. and his best friend on the court was ruth bader ginsburg, which shows me there can be peaceful coexistence. but it's a big loss for the country. my heart goes out to the scalia family, and you know, we lost a giant on the conservative side. >> you say, we lost a giant on the conservative side, senator. and you recently ran for president and were out, i saw you just out in new hampshire, stumping for jeb bush. we've heard reaction from him today. a lot of talk about justice scalia as a conservative. i wonder if you and i could speak a little bit about his jurispruden jurisprudence, especially in the area of national security, you're an expert on that as a military attorney, among other things. and yet you and he, i believe, would disagree on certain things. he had cases where he found protections for search and fourth amendment protections. he, as i mentioned earlier in the broadcasts, found four american citizens' rights against the bush administration in the era of detention policy on some issues where you've been a leader. talk to us about some of those
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areas, even where perhaps you and he didn't see exactly eye to eye, but i take it you thought he was a good judge, nonetheless. >> well, absolutely. he was an originalist, and i'm more in the camp of how you look at the document itself, but when it comes to law of word attention, he was on my side, he agreed with my version of the detainee detainment act, that you could hold them indefinitely until they were no longer a risk. that comes with the territory. we're not nominating robots. and here's what will happen, i think, in terms of the election. that conservatives and liberals need to understand that if you don't win the election, you can't appoint a supreme court justice. so i hope conservatives will look at this as an opportunity to make sure that we nominate somebody that can actually win the white house. >> you mentioned on who the nominees should be on the party, running for president. what about the president's nominee here? do they deserve a fair hearing
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and an up or down vote, as has typically happened in history? >> well, i told the president to his face and all the democratic leaders that if you go down the road of changing the rules, which you did a couple of years ago, to pack the court with a majority vote, it will come back to haunt you, mr. president. i voted for sotomayor and kagan, not because i would have chose them, because i thought they were qualified. i objected to the senate republicans changing the rules when president bush was agreed by filibusters, by democrats against his appointments. i was in the gang of 14 saying you shouldn't filibuster unless there's an extraordinary circumstance. so to my democratic colleagues, when you chose to change the rules for appellate court judges and appointments to the executive branch by majority rule, i told you what i would do. you abused power. >> let me make sure i'm understanding, sir. are you saying, before the presidents made this appointment sight unseen, you're against them getting a vote for the reasons you just stated? >> no, i'm saying it's got to be
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a consensus choice. it won't be their traditional well-qualified liberal. it won't be that. and that's what i've used in my past, a well-qualified conservative and a well-qualified liberal. you can't have it both ways. >> so you're saying, and you mentioned the votes you had previously, that that was something you were willing to go along, but based on those senate rule changes, you have a new standard now for what would pass muster for you to confirm the president's new appointappointe. what is that standard? >> you better find a consensus choice. >> what does that mean? >> half the republicans should be able toe vote for this person. >> so what will you be looking for, sir? >> somebody like orrin hatch. >> all right. >> somebody that is going to be seen as a solid person. you know, you can't have it both ways. you can't change the rules and act like nothing happened. i've been fighting this for a
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decade inside my own party. i voted for sotomayor and kagan because i thought they were qualified. i'm not going to let this president abuse power and have no consequences. if hillary clinton wins the white house and she nominates a traditional liberal who i think is well qualified, i will vote for that person >> but your view is, because of the rule changes and the votes already come forward, you view this differently now for this third obama appointee? >> yeah, and i told him that before he did it. >> any other thoughts before we let you go here, especially as we also look toward this debate tonight, where we expect the supreme court to loom large? >> i hope it's not just about the supreme court. our nation's at risk. we need a commander in chief that can keep us safe. and this is an important decision for the next president to make. i'm looking for somebody who's a republican to make this appointment. but more than anyone else, can bring us together as republicans and democrats and keep us safe. i'm looking for a commander in chief as much as anything else.
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>> and i guess i should also ask you, donald trump and other candidates have put out a statement, do you think an event like this, and here in your home state of south carolina, do you think an event like this might change the way republican voters look at the candidacy of donald trump and who he would put on the court, potentially? >> i hope so. >> i hope so, because you can't trust him. he's not a conservative, he's an opportunist. he's been all over the board on every issue and now he's trying to become a fake conservative. i trust everybody on the stage except donald trump to pick a traditional conservative republican replacement for justice scalia. the issue for me is, of the people up there, who can win 260 electoral votes. i don't think ted cruz can, i don't think donald trump can, because he's insulted two-thirds of american and and doesn't have a snowball's chance of hell of winning. if you want to pick a replacement for scalia, you better win. >> senator lindsey graham joining us from the campaign trail on a busy day. appreciate your time, senator.
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>> thanks. >> thank you. i want to turn now to harvard law professor, lawrencele lessi who's argued before the supreme court and clerked for justice scalia. can you hear me, larry? >> i can hear you, yes. >> let's start with the time you spent in the chambers with justice scalia, working on opinions, learning about him as a person. let's start there. your memories and your thoughts of this man you knew so well, who has passed away. >> well, it's very difficult thing. i literally learned about it 45 minutes ago. you know, he hired me as the token liberal in the chamber, because he wanted to create an environment where there was somebody whose job it was to hold him to his principles. and as a clerk, i saw him the
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struggle many times with what it meant to be an originalist. and every single time i saw him struggle with that, i saw him do the right thing. not the thing i would have chosen to do as a liberal, but the thing an tornoriginalist ou to do. so he was an enormously, you know, it's a hard thing in this partisan world to admit this. i would disagree with him, i'm sure, on every single political issue, but i was enormously moved and impressed and he had an incredible effect on my life, because of the integrity of how he approached his job. >> what were his words of wisdom or advice or mentorship to you during or after that? because you went on to play an active role, some viewers today may recall that you have challenged corruption in politics and formed an organization about that, that you've run for office yourself. folks may know you a lot more from what you did later than your time working for justice
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scalia. and yet by your own account, it was informative. what did he tell you to do? >> you know, i mean, his teaching was by what he did, not by what he said. and what he did was to constantly focus on what he thought was right, without fear about how people would think about it. the supreme court is filled with justices, so you can see, you can sense, they're constantly aware of what "the new york times" is going to write or what "the wall street journal" is going to right. and they're really liberating thing about working for scalia, i worked for judge posner before judge scalia, they were both the same in this respect. he just cared about doing what he thought was right. and my job as a clerk was to make sure that what he was doing was really right for scalia, as opposed to right for what i cared about. but, the integrity of that was, you know, really inspirational
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in the sense of this gave me a sense of, what it was worth it to do. as opposed to constantly sucking up to what the world might think you should be, versus acting as you know you ought, his lesson was always the second. >> and i think that makes sense to me, as someone who observed him from a paragreater distance than you did, but he was just bold and direct in a way that so few people in public life are. i suppose another question, and i don't know if it's a fair one, but did being like that get him on the court or did being on the court give him the freedom to be like that? >> you know, justice scalia and judge easterbrook, a whole bunch of appointees made by ronald reagan, and an incredible moment in history where the president appointed people of strong character and strong beliefs, and not really worrying about
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how it would play, but really committed to the ideology that the president had. we don't really have those kind of appointees anymore. after judge bjork and the fight of judge bjork at the supreme court level, that doesn't happen anymore. so justice scalia was justice scalia before he came to the supreme court. and his life on the supreme court continued, i think, who he was before. but i know every single one of the people had the privilege of working for him, regardless of how they viewed his ultimate votes or his politics, you know, couldn't help but develop enormous respect for his integrity as a justice. >> we're speaking to lawrence lessig, a former clerk to justice scalia. talk about his humanity and his humor. it's often mentioned by people we've interviewed today, reflecting on his passing, that he was close friends with justice ginsburg, who had opposing views on many key and high-profile cases. there's research that shows he drew more laughter than most other justices, because there
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are law professors, as you know, as a professor, they would count anything, they would count the laughter in response. and yet we're looking at them on screen right now, of the photos they take, the photo spray, one of the only time the justices come out together for anything that could be called pr, and they're in their robes and they look so serious. and we think of them, the public, often, as judges, as something less or different than human. and yet, one thing i noticed was that at least in public, his humanity was always shining through, larry. >> that's absolutely right. he had an incredible sense of humor. you know, he also had incredible, an incredible anger. i remember in chamber, he would -- when you had to convince him of something he didn't want to have to do, he would put up a serious fight. and he would resist you. and he, you know, he would eventually come around to the right thing, but it wasn't always pleasant. so he was a person of, you know, of both extremes, and -- but
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what that did, it made you have a real sense it was a real person you were working for and he and ruth bader ginsburg are close friends, and elena kagan is an incredibly close friend of his. he talking her to hunt, which is the last thing in the world i would ever imagine elena kagan doing. i would never have predicted that elena kagan would pick up a gun and shoot an animal, but justice scalia taught her to do that. >> and he was found dead at a resort in west texas, which according to reports, was a hunting trip, something he enjoyed immensely. i want to ask you another question in plain english, which is starting with what alan dershowitz told nbc news today, justice scalia introduced both a new methodology and a new style in the way he wrote opinions.
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talk to us about that methodology, in plain english for non-lawyers, what did justice scalia do in the way he interpreted the constitution, and if you can, your time with him. >> the most important thing to justice scalia, the theorist of interpreting the constitution was to develop a theory that would restrain the judges. this is hard for liberals, especially, to hear, because we think of the conservatives and we think that they're making up constitutional restrictions all over the place, but this is what motivated justice scalia. his idea was, the way to restrict judges, to make sure judges were not injecting their own personal political philosophies into the constitution was to tie them to the original meaning of the constitution. so what that meant is, if you have a question, you know, should a state be allowed to execute somebody, you go back to 1789 or 1791 or 1865, depending
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on which amendment you're talking about, and you ask the question, what would the people who ratified the constitution or ratified the amendment believe was the answer to this question? and whatever that answer was, that's what you stick to. so you don't allow the constitution to evolve in light of current political prem preferences, you keep it fixed to this original idea. and what motivated him all was the sense of how illegitimate it is to have unelected judges imposing their own personal press conferen preferences into political politics. >> let me dig in there, because we're short on time. his view, and you felt it was earnestly held, if there was a tough call, something that had to be made up or struck as we go along, that the judicial branch was the worst-positioned branch to make that call? >> absolutely, because these people are unelected october
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that ja narns, so why should they be imposing their will on the public. now, many of us, especially liberals like me, don't believe that necessarily the court has done that appropriately in every case. but having worked, you know, arm-to-arm with him over the course of a year, i could never -- i cannot believe that he didn't genuinely, honestly, and integrity try to pursue that view. and it's that that will always have me giving enormous respect to what he did as a justice. >> larry lessig, who clerked for justice scalia and went on to an accomplished legal career and argued before the doubter and is a harvard law professor, your insights, much appreciated on a day that i know for someone like you, a friend of justice scalia, is a hard day. thank you for joining us. >> thank you. >> we can also report a new reaction from speaker nancy pelosi, who notes, and this may not seem so big today, but it was certainly big to many people
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and big when he was appointed, she notes, justice scalia made history as the first italian american named to the supreme court through his community. she saw his pride and his heritage and his dedication to his beautiful family. that new reaction pouring in from former speaker nancy pelosi. you are watching msnbc special live coverage. we are live today because of the news justice scalia served 30 years on the united states supreme court, was the longest serving justice, not the oldest, but he was found dead today in west texas, where he was on a hunting trip. we have seen reaction pouring in from what was an unexpected event. justice scalia's health has not been in question in public. he was seen as an able jurist with a precise and active mind. when asked about retirement, he has always said, he felt ready to serve for much time long


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