tv Hoarding My Mothers Garden MSNBC February 13, 2016 4:00pm-5:01pm PST
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 longer and he would know when it was
time to go. his time did come today when he was found dead in west texas. we have live special coverage with a lot of different views and reporting to offer this hour, including a lot of reaction from the presidential candidates, as they gear up for a presidential campaign debate among the republicans tonight. we're joined now here at the top of the hour by nbc justice correspondent, pete williams, who's been following this story from its inception. for people just joining us, what can you tell us about this story? >> it is such a jock. justice scalia was in such apparently robust health. no diminished intellectual capacity, in terms of his opinions or his participation in oral argument. but he died, apparently, overnight or early this morning where he was at a guest ranch in west texas, and in terms of the time, we learn a little information about this. i just talked to the church. the catholic church in texas, where a priest was called today to administer the last rights to justice scalia. and they said that happened
about 4:45, between 4:45 and 5:00 tonight, eastern time, which would be between 2:45, and 3:00, in west texas, mountain time. so sam some time around 2:45, 3:00, is when the priest was called to administer the last rights to justice scalia, one of the catholic members of the supreme court. so, lots of condolences tonight. everyone's thoughts, of course, to his colleagues on the court, to his wife, maureen, to his considerable family, but we have to look, of course, to the future, and the immediate question is, what does this mean for the remainder of the supreme court term, which began the first monday in october, and will end at the end of june. and joining us now is tom goldstein, who practices law before the supreme court. he's argued many cases. and he's also the publisher of the definitive website for all things about the supreme court, scotu blog. so tom, lots of big issues that were coming before this court that would normally be decided on 5-4 votes.
so what happens now? >> the rule is, until the court decides the case and actually issues its opinion, nothing counts. so that if justice scalia, for example, provided the fifth conservative vote for a decision and he has passed away and the court has not issued a decision, it's now a 4-4 tie. and when the court decides 4-4, there's no ruling. it's as if the supreme court never heard the case at all. it's said to be affirmed by an equally divided court. so what we do is we look out across the landscape of those cases and say, which ones were likely going to come out 5-4 with the conservatives against the liberals and the conservatives winning, probably the biggest one that we can say almost for sure is a case in which the court was likely to restrict contributions to public sector unions. the court also had a major abortion case on its docket, it has an affirmative action case on its docket, although there one of the measure liberal judges isn't participating.
it has a major challenge to the obama administration's immigration reform and also to the manner in which votes are counted under the so-called one person, one vote principle. so there are probably three, four, or five major constitutional rulings that were going to go the conservatives' ways that are now ties. >> so let's go through those briefly, one by one. because what you say is a tie vote means the supreme court's part of this doesn't count. that would leave the lower court ruling standing. so whoever won in the lower court would prevail if there were a tie. let's go back. on affirmative action, who won below and what would a tie mean? >> well, in that case, the university won below. >> this is the university -- >> sorry, the university of texas, their affirmative action program was upheld and the supreme court was reviewing that case. it did look like the supreme court was going to restrict affirmative action, but by a 5-3 vote, because more liberal justice elena kagan was not participating in the case, because she worked on it when she was in the obama
administration. so that's likely to be, now, a 4-3 ruling, limiting affirmative action, and that decision will come out, because there is still a majority, even though it's a four-justice majority. >> now, some of the other cases that are pending, president obama's immigration plan. he's lost in the lower courts, right? this was the best chance for the mirpgs. and what difference does this make? >> well, it probably is not going to be a great victory for the administration. if it ends up being a 4-4 tie. but what it does do is leaves in place the prospect that in a later term, if hillary clinton were to, for example, win the election, or bernie sanders, a democratic president were to replace justice scalia, given it's unlikely and we can talk about this, that president obama will get to nominate justice scalia's and appoint justice scalia's successor given the politics, in that scenario, that immigration program could come back in front of the supreme court a second time.
>> unions, public sector unions? >> public sector unions, you know, it's a very regrettable circumstance when anyone passes away, but if joins are probably relieved at the juris prudential impact of this. they were very likely to suffer a very devastating blow from the supreme court holding 5-4 in favor of the conservatives that they could not be -- could not compel non-members to contribute to their bargaining activities, which is, the unions say, very important to the union's ability to survive. that's probably going to be a 4-4 tie. we'll hear about that in relatively short order from the supreme court. and a lower court ruling will stand in favor of the unions. >> so one of the big cases this term was going to be on abortion. and this was a test of laws from texas that require abortion clinics to have ambulatory care standards and to have doctors who have admitting privileges at nearby hospitals. and the abortion groups were very much hoping the supreme court would go the other way on
this one. they lost in the lower court. the lower court upheld, in essence, the texas standard. so what would happen here? >> well, it did seem more likely than not, because the supreme court put the texas law on hold, that the justices were going to strike the statute down, the two texas restrictions down 5-4 with justice kennedy probably joining the more liberal members of the court. if that prediction is right, then that ruling would come out, 5-3 in favor of abortion rights. if that prediction was wrong and the texas statute was going to be upheld, then the court would end up being 4-4, and the lower court ruling upholding the texas law would stand. now, it's very likely given that abortion is so fraught, that if the supreme court were to decide such an important question 4-4, again, in the next term or the term after that, the justices would return to the subject of abortion. >> and finally, on the question of contraception, this was a
issue of religious-affiliated institutions, whether they have to abide by the contraceptive requirements of obamacare. >> yes, the administration had adopted an approach that said to religiously affiliated organizations or organizations that had a lot of religious motivation behind them, that they didn't have to directly provi provide contraceptive care, but they had to let the government know. so to the surprise of some, which the supreme court had signaled that accommodation was okay, it did enough to address the religious interests of these organizations, they had signaled that that was going to be all right, but the justices had agreed to review that case. at the very least here, i think the administration can take solace in the fact that justice scalia was going to very likely be a vote to say that those -- that accommodation didn't go far enough, in order to accommodate the religious interests of these
groups and these institutions. whether it would otherwise be 5-4 in favor of the administration, so 5-3 now or a 4-4 tie, at the very least, the administration won't suffer a 5-4 loss. >> and because these cases were all over the map, they were decided in different ways in the lower courts, the tie would leave the law basically in a jumble. >> it would be a mess, because the court didn't take just one lower doubter ruling, it took a whole amalgamation of case. s. i don't think anyone would know precisely what would happen in that turns into a tie. >> so you talk a lot to people in the administration, you know folks in the white house. is it likely in your estimation that the obama administration had a list of potential nominees ready to go for just this eventuality? >> i don't think they had a firm list of nominees, but they had a set of people that they knew were likely candidates, including because the president put those people on to the court's of appeals.
so i think right off the bat, we can identify 3-5 very likely candidates, that they will be able to put back in front of the president, in order to have vetted as a supreme court nominee. and then they will face the question, given that the republican senate will basically say, from the get-go, we are not putting anybody on this court that could move it substantially to the left, when a republican may win in november. are they going to put forward a nominee at all? and i think the answer is that they will, even if that person probably can't get confirmed. >> all right. very much, thank you, tom goldstein, the publisher of scotus blog and a lawyer who argues cases before the supreme court. ari? >> just to echo that, pete williams, our justice correspondent, tom goldstein, a celebrated litigator before the supreme court, a very helpful handy capping there of legal consequences are. because what happens with this appointment by the president to replace justice scalia, all those pending cases you just heard about, abortion, affirmative action, union rights, all of them still
pending and the court's work grinds on, even with an absence, even an unexpected absence, as this one, coming from justice scalia passing away today. we're joined now by andrea mitchell, nbc chief foreign affairs correspondent, and our eyes and ears out on the campaign trail where many story is drawing big reaction. so your thoughts on this unexpected news today? >> reporter: well, it's really an earthquake. first of all, on a personal side, justice scalia, the biggest, most robust, most controversial conservative thinker of his generation and certainly on the court. personally, a funny, colorful, charming man, a close friend to justice ruth bader ginsburg. his liberal opposite. they love opera, they're on the social circuit. i see him all the time with his wife, maureen. he was fiercely proud of his
wonderful nine children, including military members and lawyers. this is a, you know, obviously, a personal story, as well. but he's a lightning rod, and a polarizing figure. and i covered his confirmation. you know, he was appointed in '86 by ronald reagan, and in the aftermath of the bjork disaster, he was the strongest figure on the supreme court. you think about the clarence thomas hearings in 1991 and how difficult those were, but clarence thomas has not asked a question in the last ten years on the court. scalia is the person who transformed the court in terms of, in modern-day times, in terms of vigorously asking questions and tempering lawyers with queries and being very, you know, very controversial and provocative in his questioning in open argument. and he is, from all reports,
even more so in private conferences. so he has been a shaping influence on the court. and politically, you've already seen mitch mcconnell saying that no nomination will be considered by this republican-led senate. he controls the floor. and you've seen pat leahy, the former judiciary chair, now vice chair, since the senate's passed hands, saying that it would be, that the republicans should not block a nomination and should not stop the president from performing his duties. >> let me ask you point-blank, not as to whether it is good or bad, people will have time to debate this. but is it fair to say it is unusual, if not unprecedent, to have such a swift reaction from party leadership. not just presidential candidates, who have their own agendas, but from the senate majority leader, immediately saying, not that he wants to be
involved in advising and consenting and consulting on this pick, but essentially the president should make no pick and this should wait until after the election. >> i don't recall this ever happening. so you would have to check the archives, but i cannot recall a senate leader saying at such an early moment, we have barely had time to consider the loss. this is a personal loss to many, many people. and politically, a huge loss to many people. and normally, these kinds of statements are not made until after someone lies in state and after a state funeral. this is really pretty extraordinary. the battle lines have been drawn. and this is the first time in my memory that you have the presidential, the presidency at stake, the judiciary, at the highest level at stake, and congress at stake. all three branches are in a complete battle mode.
and now you also have republican senators like kelly ayotte from purple states like new hampshire, where she is in a tough fight, and this is going to affect republican contests, because the supreme court and how these senators will vote, as well as the presidential race, of course, most importantly, will be one of the biggest issues. it already was a big issue, but now it is central to the presidential and the senate races. >> central, and andrea, because you have the unique experience of being in washington where so many of these battles have played out, as well as on the campaign trail, where you've interviewed all the major candidates, talk a little bit about how justice scalia really emerged as a model for many conservatives as the type of jurist they would want. there were cries of no more souters after other republican appointees disappointed. there were feelings that chief justice john roberts, who has
impeccable credentials, cannot argue with his conservative and academic credentials, and yet didn't do what conservatives always wanted. justice scalia, i would argue at times, looked like the reagan of legal conservatives, can do no wrong. >> absolutely. and he was, being an originalist, he was the philosophical and judicial articulator of these series. and these beliefs. so he had enormous influence, certainly, ted cruz, considers himself an acolyte. and ted cruz among all the presidential candidates has arguing multiple cases in front of the supreme court. so this is going to be become -- we're going to see it already at 9:00 with the debate on the republican side tonight, there are going to be opening statements, and there are going to be questions and, you're going to get, i think, from all of the candidates, a royalty to
choose a nominee to replace justice scalia. i guess, that is the choice of a republican president, who would be in his foot steps. >> nbc's andrea mitchell, thank you on a busy day for joining us. and i hope we can hear from you again, as we do look towards that debate tonight. i'm joined now by phone from msnbc's rachel maddow. thank you for joining us on this busy day. rachel, i want to get to the politics, which i know you were speaking about earlier on air. i want to talk about your view, as someone who covers the loss so closely and has an eye on the supreme court so frequently, your view of justice scalia, the man, his influence, who he was. >> you know, ari, it's a good place to start. because i'm absolutely right with andrea, where she said, where she was commenting on the politics taking off like a rocket here already. even before there's been time to
absorb the information about his loss, let alone even start to grieve. and he's a man with a decades-long marriage and nine children and dozens of grandchildren and a huge circle of friends and somebody who's been a washington fixture since the '80s, when he went to the court. and he just, he has a lot of -- there's a lot of human mourning left before anything else should happen about his death, honestly. and i say that as somebody who has, who could not be more ideologically opposite to justice scalia, obviously. and i think as a man on the court, in terms of his temperament and his style and his performative and theatrical nature, he changed what it means to be a supreme court justice and he changed the role of the supreme court in american social movements. he is a superhero to people like -- to movement
conservatives like ted cruz and other people who have come up, not through republican politics, necessarily, but through conservative ideological crusading. he has made himself larger than life by the way that he's used his platform on the supreme court to pick fights, to ridicule people, to be quotable in a way that's going to go way beyond the legal analysis of any issue of the day. and that -- you know, i don't know if we have to think about if anyone can fill those shoes. i don't know if there will ever be another person like that on the court. i don't know if there will ever be room like that in his wake. i think he was an absolutely unique person. because of that, though, when you think back on his angry and vituperative and occasionally witty and laugh out loud funny d dissents on particularly civil rights cases and gay rights cases and abortion cases, those
were cases -- those were cases where you and i could quote him off the top of our heads right now, those were usually cases where he lost. and in dissent, he was willing to be that big and that flamboyant and that quotable and that memorable. i don't know that we'll ever see that again. there was no one like that before him and it's impossible to believe that there'll be anyone like that after him. and that means it's going to be an outside political fight, even if it had come at a more political time. >> you talk about his language. there are so many things i want to ask you. i'm thinking about his dissent in the gay rights cases -- >> lawrence v. texas. >> sure, if you want to go back to anti-sodomy laws, or i was thinking in the more recent marriage equality cases, where he talked about the marriage equality case, which was seismic and so big to so many americans, and he said, its actual problem was the court. something he's talked about before. the court making decisions
better left to the people, through his view, in the political branch of the state, and he talked about that diseased root, it's a term at the top of the dissent that many people, you know, immediately glommed on to. the diseased root of the power, and the exulted conception, he wrote, of the role of the court as an institution in america. some would point to hypocrisy there, because he did use the court when he could in other arenas, certainly, to make law, certainly, on the second amendment, which i was talking to with one of our colleagues earlier tonight. but talk about the way he would take something like that, and say, not only am i going to go against public opinion and precedent on marriage equality, but i'm going to do it by saying, this is about a problem with the court, a problem with my colleagues, put a bull's-eye on their back, and reposition an argument that prior to that people would have thought was a question, where do you stand on marriage equality, not separation of powers? >> that was part of his sort of argumentative genius. and i think that's why he does loom so large as a conservative
hero in addition to be a jurist. because he had a way of making arguments where the people who disagreed with him were not just wrong on the issues, the people who disagreed with him, you know, weren't speaking the language of the law, you know? his idea of originalism was that everything that he could see in the constitution had been clearly written there, by the founding fathers. but other things they thought they saw in the constitution were because those people were idiots. and because those things planl weren't in the constitution and it was self-evident. he had this way of making his way, as if anyone who disagreed with him was foreign to the concept of the argument, right? there was never -- you were never drawing a line between two possible positions. there was no nuance with antonin scalia. you were either with him or you didn't belong in the room. and that it makes for -- i don't say that as a criticism. it's a very entertaining and
very galvanizing way to make your case, and that was always the way he did it. and on gay rights cases, specifically. he really was vituperatively anti-gay rights. and he wrote, you know, lustily, about his moral disgust for gay people. and it led to some very interesting and consequential moments. the reason i brought up lawrence versus texas, that was the anti-sodomy case, and when the sodomy laws were struck down, he said, in anger -- but also very helpfully -- that the sodomy laws being struck down would eventually lead to same-sex marriage being legal nationwide. and he was absolutely right about that and his legal reasoning was absolutely right. but he said it in anger, and with a sneer, right? he said it like, i can't believe you're doing this. you realize what it's going to lead to? and every liberal in america, everybody who supports gay rights in america said, yes, we know what it's going to lead to. but for him, it was self-evident that that was a completely ridiculous response.
>> final question, because i know you have to go, rachel, bush v. gore is a case that justices bring up. i've seen multiple justices defend it in anguish because it was such a knock against the court. his famous remark about bush v. gore was get over it. what does that tell us about him as a judge, last question. >> it just tells you what he is as a political figure, honestly. it's not like none of those justices knew what they were doing. and it's not like in bush v. gore the count of the justices came down regardless of the partisan affiliation of the president who appointed those justices and the ideological lineup of the judges on the court at the time. yes, they're jurists, but they're political actors. and the politics tonight that are already being unleashed about replacing him are going to be bigger that be anything we could have imagined. this now is going to change the presidential race. this is going to clahange the re
for the united states house, even though they're not going to have a role in this. this is going to change one third of the united states senate. this is going to change what it takes to be seen as a qualified nominee of either party in the presidential race. if the republicans really do try to hold a vacancy in the supreme court open for a year in the hopes that they're going to get a republican nominee to put somebody on the court, that is an act of radicalism that is going to be, that's going to reverberate for generations. i can't really believe they're going to do that, even though that's what they're signaling. i think you'll see this president put forward a more conservative nominee who he would otherwise put forward in different circumstances, but he's going to put somebody forward. and if the senate doesn't act on it, all bets are off. all politics are new. >> and i was speaking to our colleague, andrea mitchell earlier. she says, she cannot think of another time where this fast, that was the reaction from the majority party in congress. and of course, others have pointed out, i saw you point out
online, that there have been many, many nominees put forward in election years. so that would be not only radical for our politics, but have a significant impact for our governance, because the supreme court has a full case load, as always. the idea of freezing it for a year is radical by any sense of it, being able to do its job. i know you have to go. hope you can join us again. rachel maddow, thank you so much. >> ari, you're doing a great job with this incredible story. so glad you're able to be there anchoring tonight. >> thank you, appreciate that. we go to richard lui in our newsroom who is also tracking all the reaction pouring in. it's hard to keep up all of the different reaction, legal, political, and other public figures given the wide swath that justice scalia cut as both a jurist, yes, and also a public figure. and richard, someone who was on a first-name basis with so many people, because he loved life. he was a gregarious person. because he was here, yes, we're reporting on his death, but he was here out hunting this weekend in west texas, because he was living his life as well as doing his job. what do you have for us? >> ari, yes.
so well-liked, regardless of agreement on politics, or not, as you have really elicited from all of your guests so far. and one of the questions that you have have been ferreting out is what's going to be next in the process of naming a replacement for justice antonin scalia. this as the family themselves go through the very difficult process of plans starting today. so the response has been fast and furious within the last two or three hours. all of the statements, remarking about justice scalia as a person, remarking about his family, his wife, the nine children, and being of an immigrant family. along with that, i wanted to share this one response, this comes from the senate judiciary chair, chuck grassley, the republican from iowa. and although he was asked earlier, i guess within the last
three hours, by "the des moines register," they, at that moment, just a couple of hours ago, chuck grassley was saying he wasn't sure what the next steps will be. however, we just have a statement from the senate judiciary chair, chuck grassley, which is now a little bit different than what he told "the register." he says, in part here, quote, the fact of the matter is that it's been standard practice over the last 80 years to not confirm supreme court nominees during a presidential election year. given the huge divide in the country and the fact that this president, above all others, has mao bones about his goal to use the courts to circumvent congress and push through his own agenda, it only makes sense that we defer to the american people who elect a new president to select the next supreme court justice. so that is chuck grassley, the senate judiciary chair, a republican. you can so ethe political tones
in that, ari. and he is echoing mcconnell's call. of course, mcconnell, the senate majority leader, also saying, wait until after the election. and just a tidbit, he says, within the last 80 years, grassley does, but we just have to look back to 1998 when justice kennedy was confirmed endang during an election year. this is just one of those questions you have been looking into, amongst so many. ari? >> the death, but also what comes next here. i want to go now on that to steve kornacki, who has also been following the political reaction, pouring in. steve, as a matter of fact, not opinion, this has been a faster pivot to the politics of the appointment process than we would ever typically see after the death of a public official like this. this may speak to the intensity of that campaign out there, what can you tell us? >> yeah, sure. just listening to the
conversation in the last few minutes, i guess we had talked about the precedence for an election year supreme court nomination fight, which it looks like we'll be having here. you just mentioned the 1998, anthony kennedy was confirmed, i think that's february. one of the things to keep in mind about that one, he was the third choice, anthony kennedy was of ronald reagan. that was a process that actually played out over seven months. it started with lewis towle in the summer of 1988, announcing his retirement. reagan put up robert bork, one of the most controversial supreme court nominees in history. the democrats rallied with the help of a couple of republicans to kill that nomination and there was a second pick, douglas ginsburg. i think there were questions about past marijuana use. he withdrew his nomination. so certainly, he was confirmed in the election year, but that was a confirmation that followed a lengthy, protracted process, that included one, one defeated,
and one withdrawn pick. the thing to take from that, that was a seven-month process. the question here is, can the republicans run the clock out through the election? if he could get through seven months, in '87 and '88, if you got through seven months now, that would take you into the fall into the height of the campaign. so, you know, democrats will try to apply a lot of pressure here, obviously, try to get republicans to fold and allow some kind of vote, like whoever the president puts up. i feel a feeling the republicans will stand hard and fast on this. i mean, if you want to go way back, way back into the history books, you could go to 1828. a guy named john crittenton was put up in the andrew jackson faction in american politics was against his nomination, and the jackson forces denied him confirmation throughout the entire campaign. and then andrew jackson became president, and that was the end of the nomination. >> what do you think, though,
about the idea that rather than trying to influence the nominee, the opening salvo from the republican leadership here is, no nominee is acceptable? that is distinct. that is different than the usual back and forth over this type of thing. that may suggest from the presidential candidates, desire to not give any quarter. and you know better than anyone on our team how that works. but it's not just the presidential candidates, steve. it is the senate and grassley, as our own richard lui has been reporting, has already modified, is a diplomatic way to say it, has modified his position in the opening hours of this to say, yeah, wait a minute, there is no one the president could put forward that we would move on. >> yeah, i think this is the logical continuation of the way judicial politics have been playing out in this country for the past 25 years. and it tracks with the way politics have been evolving in this country in the last 25 years.
where we are evolving in is a way, where almost everything becomes a partisan fight. it used to be, not long ago, you could go back to the late 1980s and '90s and you could find antonin scalia on the republican side or a stephen breyer or a ruth bader ginsburg on the democratic side and you could find nominees that were deemed qualified, there was a consensus they were qualified, and that was the threshold, and they would get strong support from the other part for their confirmation to the court. there was a sense that, hey, the president of the united states was elected, one of the things that happens when you're elected, you get to pick the people you want to put on the court. if you pick a qualified person, we have no choice but to confirm that person, even if we don't agree with that person ideologically. that's been changing, though. if you look at the votes, this has gone both ways. you look at the votes under john roberts and onso sam alito. the opposition from democrats in 2005 and 2006 wasn't enough to
stop either of those nominees, but you had opposition then you weren't seeing 20 years earlier. >> republicans would say that was mounting on the democratic side and the rule changing has happened from both sides. thanks for jumping on the phone with us. i want to go to our own chris matthews here. chris, as i've been doing with several people i've talked to tonight, i want to start with scalia, the man, before we get to the politics. your view view of the kind of person he was. the jubilant, excitable, and direct, strong leader that he was. >> well, i guess i'm fortunate to have grown up around people like justice scalia, antonin scalia. he's a man of his times, a man of his religion, a conservative roman catholic. the kind of guy my dad hung out with and enjoyed the company of for most of his adulthood, the knights of columbus. a classic catholic in the sense that his philosophy of the
courts and his political, his politics, i suppose you could say, and his religion were all consistent and unitary. he was a man of conservative belief with regard to the chu h church, someone said he could be in the kurio in the vatican, very conservative about his views of the church. and his view on abortion rights were nil, he didn't believe in them. he was a happy guy, it all fit together for him, his philosophy, his religion, and his role on the court, and it was all conservative and holding on to what we have and original intent. i think he's an originalist. that's fair to say. he would go and look for dictionaries from the late 18th century and try to figure out what the founders were thinking of when they used certain words. >> but chris, talk about the ambition of that project. because this was not the william f. buckley conservatism of saying, stop, or just conserving and the root of the word, what
we have. this was something he truly originated throughout his scholarship, and put to force in the courts, when he began originalism was not a household word on the courts, let alone on the republican campaign trail. and what he said is, not only can we conserve, speak but we can actually use this methodology, which he said he was applying, which he said was, essentially, in his view, nonpartisan to build on the conservative roots in the constitution, in our founding documents, and to reshape the society. he, in some sense, was successful in moving a lot of conservative thought and some of the mainstream. >> you know, i think -- i heard him once say that he liked law. what he didn't like was finding truths, like in all the landmark cases, certainly, brown-to-brown case and roe v. wade, they always involve the justices finding something inherent in the constitution that isn't worded there. and he didn't like that at all.
he wanted, for example, the issue of abortion rights, pass a law nationally or whatever, and men will rule on its constitutionality and i'll be more inclined to say yes, more than someone saying, there's privacy involved here, something inhrnt in our rights. he was very much against finding new things in the law, in the constitution. but at least he said so. that he accepted the fact that there was a power to the legislature. if the people's representative wanted to do something, that carried a power with him. not just the original words of the constitution. so somehow, they put it together. but i think he -- i just think the guy, what i can tell of him, and having spent some time with him alone, i felt that he was very much a man of his time and his religion, and that he never saw any obstruction or any conflict. like a lot of liberal catholics like myself and our family, we're always dealing with conflicts. we're dealing with our notion of the constitution and american freedom and diversity and
liberty and understanding the decisions that justice kennedy came to on matters of sex, particularly. and whether it was lawrence case or later on, this case that accepted, basically, the notion of east coasame-sex marriages b constitutional and you can't deny it as a right, these things we understand. i was always watching kennedy saying, there's an interesting guy from out west who's a roman catholic, and here's a guy from the east who represents the more traditional church. both the same religion, but different accounts of it. and stfit was, to me, fascinati and to me legitimate in both cases. but so much rooted in their philosophies or how they grew up. >> you're such a student of language, rhetoric, political language, legal language, where words carry force. i want to ask you about one of my favorite justices, scalia, cases, the 2001 case, where there was basically thermal imaging being used to try to find the heat lamps people used
to produce illegal narcotics. so the government, the police came up with a way to get a look inside the house through their imaging, through technology, without going into the house. so they didn't get a warrant, because they said, hey, we didn't enter the house, wasn't a search. and that went all the way up to the supreme court. and although justice scalia, as you know, is so doctrinaire on other issues like the death penalty, he said, what do you mean? of course it's a search. i don't care if you physically entered ornd, the word "search," in his view, for the matter of constitutional liberty, means, you meaningfully interfering with somebody or not. and he said, if you want to do that, you've got to get a warrant. talk about that as something that cuts against some conservatives. >> that would be to him like advancing the meaning of the right to raise an army, as part of our national defense or to maintain a navy. to include an air force, obviously, the founding fathers had no idea flight -- they couldn't imagine that, but he would say, that's just, you
know, an expansion of the notion of an army. the army air corps became the air force, a separate branch of the service. but he wouldn't have said, no, you can't do that, because nobody used the word air force, never used the word "air" in the constitution. i think you're right. in that case, he extrapolated the meaning of search from a modern method of searching. you know, this is a -- god, i run towards a liberal democrat named edmund muskey, a great man, and used to argue, if you look at the constitution and the limits on the federal role that you could always go forward and finds what starts at the post office ends up with the ncc, and even today, he wasn't even up to that, but gets to the question of the internet and those kinds of decisions and there is a consistency if you allow for scientific advancement. >> let me ask you about something that he said after his 25-year mark on the court. we mentioned today with his passing, he was the longest serving, though not the oldest member of this court.
but when asked at his 25-year mark about his work and life on the court, he was asked about his victories, chris, and he said, he had, quote, damn few victories. what do you make of that, compared to a town in washington where a lot of people in congress will put their name on anything and say they're the author of everything. >> well, i would count some of this has victories that he might not count. bush v. gore, for example, that confounded a lot of us. and you're the attorney. what was the supreme court doing in election law when election laws were supposed to be written by states? and what they were doing getting involved in that? and i would say that was a victory for the conservatives of this country, to get george w. bush elected president, basically by stopping the counting down in florida. and so i would count -- maybe that's not -- you know, his top hit list, but that would be a victory. >> certainly. >> and certainly it was a partisan victory for republicans of the court.
and by the way, that's a good book, to write how they did get involved with it. who was it that brought the court into it and allowed them to basically superimpose themselves over a state which may be, it may have been an ideological court. i don't deny the florida supreme court had a political angle to it. but it was certainly extreme for the supreme court to become the arbiter of who's the president of the united states and they did that. >> certainly. and he, along with chief justice roberts and clarence thomas worked very hard, both to pick cases, because they decide what to hear, and then decide cases to roll back many civil rights protections and laws. and i'm thinking, in particular, the voting rights act, which has gotten a lot of attention. geoff which is roberts, as you know, was very careful in how he discussed that, and didn't say, for example, it was unconstitutional to protect black people's right to vote, but said that congress messed up the formula. but justice scalia went further. and i guess my final question to you, in an area of some controversy, although we're very
often careful of how we speak of people who just passed, but in that ruling, as you know, chris, he talked about racial entitlements, quote unquote, and said that once they are given in a society, they are very hard to take away. for a ruling that was only about the right to vote, that struck people as very off-base, the notion that black people voting was quote/unquote an entitlement. talk about his civil rights record, as well. >> well, it was a remedy to years and years of zrims, and making it impossible for those states and jurisdictions to let an african-american vote. and obviously that section five and all of that came in to try to fix what had been bad public office behavior. those states had been wrong in their denial of the right to vote in effect, and they needed to go in there and make sure they didn't do anymore damage by coming in with new, you know, issues of -- whether it's so-called, you know, what did they call them, literacy tests or any other game they were going to play.
they didn't trust jurisdictions and states to legislate in those areas. and that was, in sense, not a right, exactly, it was a remedy. and i guess he was -- i don't know, the use of the word "entitlement" is so fraught and it suggests you're getting something you don't deserve as a citizen. of course, it's terrible to do that. and i've been talking about his cultural background. i think he's first generation. i'm second generation roman catholic. and i'll tell you that -- i'm second generation, although my catholic side is on the more of an american-rooted family. but this idea of sexual rights and same-sex marriage and abortion, it's impossible to know to the degree to which -- or certainly to deny the influence of religion on those court rulings. i mean, it just is. i don't think you can -- it's very hard for me as a liberal roman catholic to -- i do it, all the time. but it's always difficult to disen tangle my, what i know to be the teaching authority of my church and recognize and accept that as the teaching authority, but at the same time recognize that the constitution means
something. and it means liberty in our country. it means individual decision making. it means, even when you disagree with that decision, painfully disagree with it, it's still the individual's decision. and we don't want a government so big that it forces people, it takes away that individual right. talk about invasion or fraem from search. you get into abortion rights, you're getting deeply into that question. so i think that we're going to look back as a conservative catholic, as a conservative son of immigrants, who tend to be conservative, i think and someone who saw the court as his way to carry out his deepest moral beliefs. and i think we're going to see that. and i don't consider that a knock on him, although we do, as americans, have to separate church from state. >> i understand. >> we have to do that. and to cesar the things that are cesar and to god the things that are god. cesar said that.
and that was a tough separation of church and state by the savior himself if you're a catholic. >> that holds up today. and certainly you don't medicine to imply that his religion is all he looked at on the court. >> no, it's so hard to separate, even now in these hours after his passing. and i liked the guy. i thought he was a charmer to be with. i thought he was an american original. and he put his full, his full conscience to work when he was on the court. and i think his conscience was always clear. and boy, that's a pretty good standard, even if you disagree with the guy. his personal conscience was clear. >> and i want to echo one other thing you said, that overlaps with something that a former justice scalia clerk said to us earlier on air, chris, which was that he always pursued what he thought was morally right. and you're referring to that, which people's morals, of course, are informed by religion, informed by personal experience. and as a judge, he was bound by the law, but that was lawrence lessig who said that, who, of course, politically, has
disagreed with justice scalia, but made that point and talked about their history and that overlaps with some of what you've said. chris matthews, thank you for joining me on this day. >> thanks for having me on tonight. a sad night, thank you. >> thank you. i want to turn to hallie jackson who's been traveling with senator ted cruz, who as a former lawyer for the state of texas in his official capacity and as a senator has emphasized supreme court jurisprudence really above all else. i can mention, although it's a minor facet, i'm sure it wasn't minor to senator cruz, that he was one of the very first people that we in our newsroom heard from in releasing a statement to justice scalia's passing. >> immediately, yeah. >> hallie, i know you're out there on the trail and he's put out this statement, but let's take a step back and talk to us about how the supreme court and justice scalia specifically comes up in ted cruz's campaign. >> and not just ted cruz's campaign, ari, it's come up -- and he, specifically, justice scalia has come up in a number of campaigns. he's a part of ploomarco rubio'
stump speech, for example, he has this line, we need more scalias and less sotomayors. each candidate that attended was asked about what they would look for in a future supreme court nominee. this is something that has been at the forefront of this presidential campaign and is poised to become even more important of an issue moving forward. >> so let's take it from there, hallie. from there, you're saying, basically, that this is already steeped in the audience -- >> people are talking -- absolutely. >> and then take us through to today, when this news broke. as i was discussing earlier with another guest, when you talk about conservative politics, particularly in legal circles, justice scalia is sort of the ronald reagan of legal conservatism, of federal society conservatism. so talk us through, what was it like out there as the word spread? >> and constitutionalism, too, remember, which has been so important to a number of these candidates here. we're seeing, just to give you a sense, if you want to get into the moment.
we were sitting here in the debate filing center in greenville when we began seeing reports that perhaps justice scalia had died in texas. nbc, obviously, working very quickly to confirm that news. but you saw it sort of spread through the media filing center here very quickly, almost immediately, once we had confirmed the news, i received a notification from the cruz campaign and then the press blast from the cruz campaign. he was, as you said, i think the first presidential candidate to come out with a response. remember, though, ted cruz isn't just -- he clerked on the supreme court for justice rendquist. so he knows this body and this institution very well. and additionally, you talk about scalia being the kind of originalist, constitution guy, that is what speaks directly to ted cruz. and cruz was out with that statement almost immediately, and then followed by a number of other candidates, including marco rubio early on, jeb bush and ben carson just coming in with their statements. jeb bush got personal with this. he said, justice scalia was one of his favorite justices. he said, because he took the
constitution, the responsibility of judges to interpret it correctly with the utmost seriousness, now it's up to all of to us fight for the principles justice scalias spoused and carry forth his legacy. brr ben carson also had an interesting statement about this, ari, because he added to what we've heard from some of the candidates so far which is a call to essentially push the replacement for justice scalia on the supreme court until after the election. carson saying it is imperative that the senate not allow president obama to diminish his legacy by allowing an individual to subvert the will of the people. from ben carson. >> that's where it is sometimes a big open question in politics and news. who runs this party? does senator mcconnell run this party? does the judiciary chairman grassley run this party on these issues? and the answer clearly, not to give any spoilers away on what's going on in the news, on the politics side, the less perhaps
sad side of this somber day. the 2016 candidates are running the republican party. i don't know if you've seen this out. we've all been covering different parts of the story. witness as the candidates did what you just. and set a new line that the president should have no appointee. they don't want to see who it is. they don't want anyone the president points is out of bounds. even if writ a scalia clerk. in the past few hours, the judiciary chairman grassley changed his public remarks to catch up with that. so what's happening with the republican party, they seem to be calling the shots all the way to the judiciary committee. >> at least shaping the conversation. that's because what's at stake, not just the gop but the general election too. you're asking a fundamental question. the person who will be selected
to be the nominee becomes the standard bearer for the party moving forward. perhaps it is no surprise that we're seeing that trickle down effect from these gop candidates. and of course, sitting senators will have a dual influence on the party any way given their responsibilities in congress and the campaign trail. >> what else do you see going into tonight? not to play too much prediction. we know from working -- go ahead. >> i was going to say, i don't know that i'm going out on a limb by saying this will be a major theme in tonight's debate. that's not much of a crystal ball prediction. that this will undoubtedly shape at least the opening moments of the debate. it is what we saw during the terror attacks in the fall. immediately you saw both, i think it was the democratic debate after paris, for example, the conversation immediately shifted to talk about foreign policy and national security. clearly i think you will hear the candidates talk about there tonight. >> let me push you. what will be the distinction
line? we're hearing all of them hit the same point that the president should not even make an appointment. what else distinguishes them in where does donald trump draw a line with ted cruz? >> i wonder it is who they might pick if they were president obama. i don't have a scoop on the questions the moderators are putting together. but what's important to them when it comes, to for example, a hypothetical replacement for justice scalia were they to be in that position. >> thank you. we go to the former solicitor general of the united states which means he was the one arguing before justice scalia day in and day out. off the top, your thoughts on this news today. >> well, it is a horribly sad loss for the country. justice scalia was a changer at the u.s. supreme court in our lifetimes. nobody had a more profound impact. on the way the court does its business. before hand. he listened to oral arguments.
the advocates could get whole paragraphs in and have very few questions asked of them. now it is a whole different affair all because of his questioning. he was just one of the most brilliant thinkers to have been on the court. i certainly disagreed with him a number of times but his opinions were beautifully written, brilliant. and i just can't underscore enough how much the court has lost a first class intellect and gentleman in every sense of the word today. >> when you were arguing before the court, what's the hardest question he asked you? >> oh, he's asked me so many hard questions. i can't honorly remember one. but basically, as you're preparing for an argument, you think of the five questions that you don't want to get asked. and invariably, he and justice
alito would be the ones to ask them. just in different ways, they're both remarkable. but justice scalia would constantly ask you questions is that then was smart enough to have the follow-up. some judges, particularly in lower courts, in which the questions are really drafted by other people and so on. they're just reading them. justice scalia understood every line and knew where it was weak. >> i want to ask you, i want to pull up on the big screen here. we're looking at the first images of the flags at half-mast here outside the supreme court. i believe we'll see. that it is a sad time in a court that is an intimate place. you think about nine justices. walk us there you the close in it community.
those who argue before the court, serve on the court. how they remember justice scalia as a person. >> i suspect a lot of people like me today had tears in their eye when's they heard the news. and those tears tran scended any politics. anything about losers and winners of court cases. he was just a first class justice and man. it is a close-knit community. i think justice scalia's best friends on the court, two of them are ruth bader ginsburg and elena kagan. he really stood for the best in that tradition, not holding someone's views against them. people were his friends. for that and many other reasons, i think today is hitting everyone extremely, extremely hard. >> turning from the personal to
the record. i wonder, given your experience, which only a handful of lawyers have in the whole country. you argue before this court day in and day out for the government. what cases will define justice scalia's legacy? people think about him in the majority in heller, on guns, bush v gore, on the outcome of the 2000 election. i think of him on disent. on cases involving gay rights and justice equality. they think about the areas of criminal law where he's been a vocal proponent. power and civil liberties where he felt the fourth amendment needed protections. >> i think that's a beautiful summary. i think that the criminal cases are really interesting. people think of him as always conservative. he must be a law and order type siding with the the government. much to the contrary.
i don't think many have sided more with the defendants than he has. pretty close. explain some other justice gives him a run for his money. i think he is most known for not any one case over another as much as his method of interim rhetting the constitution. that says we are guided by what our founders thought. to understand what the words and the constitution mean. we go back and ask, what was the understanding of those words at the founding of our government. that is a distinction to people like thurgood marshall. he so changed the game and it has could not crease applications like the gun control case mentioned in which justice scalia wants to go back to the original way in which, the second amendment was understood in 1787. >> we're speaking about the
death of antonin scalia. the flag is flying at half-staff. final question to you, neal, something i was discussing with chris matthews earlier. justice scalia's record on civil rights, criticized probably most vigorously by many of his detractors. especially the way he waged it. your thoughts on that? >> well, he was not a man of few words or shy with his words. he was very strong in his opinions. in some ways, that was an unfortunate thing. no doubt about it. because some words that his colleagues which i think did hurt the court a little bit. at the same time, you can count on him to be very principled in the way he thought about things. and you weren't really surprised when you read a justice scalia opinion. it was a model for clarity. and people should vigorously
disagree with aspects of the man but at the end of the day i think we should celebrate this man for being a giant in the raw and giving our country so much. >> there thank you for joining us. we appreciate your time on a tough day. you are watching msnbc. 8:00 p.m. east coast time. 5:00 in the west coast lt we are in special live breaking coverage, discussing and reporting on the death of justice antonin scalia. dying today, 79 years old. he was found in west texas where he was on a hunting vacation doing something he loved. something we've been discussing with friends and admirers and people who reported on him throughout his life. he was the longest serving member of the court. 30 years. not the oldest. he was the same age as justice kennedy. and younger than ruth bader ginsburg who he had a