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tv   Lockup  MSNBC  February 13, 2016 10:00pm-11:01pm PST

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enter the x1 voice remote. now when someone says... show me funny movies. watch discovery. record this. voila. remotes, come out from the cushions, you are back. the x1 voice remote is here. you are watch, msnbc special live coverage. we are live because of the news justice scalia served 30 years on the united states supreme court. he was found dead today in west texas where he was on a hunting trim. we have seen reaction pouring in by what was by all accounts justice scalia's health has not been in public. he was seen as a very able jurist, when asked about retirement and his health, he
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has always said he felt ready to self-for some time longer and would know when it was his time to go. his time did come today here as he was found dead in west texas. we have live special coverage with a lot of different views in 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 tat the tp of the hour by pete williams. where do we go from here? >> it is such a shock. justice scalia was in apparently in robust health no, diminished intellectual capacity in perter of his opinions or oral argument. he died apparently overnight or early morning when he was at a guest ranch in texas. i just talked to the church, the
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cat lick chur catholic church in texas where a priest was called to administer the last rights and this say that happened between 4:45 tonight eastern time which would be between 2:45 and 3:00 in west texas, mountain time. so 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 in october and will end at the end of june. joining us is tom goldstein, he's the publisher of the definitive web site of all
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things about the supreme court scotus blog. lots of big issues that would normally be decided between 5-4 votes. what happens now? >> the rule is if justice scalia provided the fifth vote for a decision and he has passed away and the course has not issued the decision, it now a 4-4 tie. it's as if the supreme court never heard the case at all. it's side to be affirmed by an equally divided court. 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. probably the biggest one 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
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has a major affirmative action case on its docket, although there one of the more liberal justices isn't participating. it has a major challenge to the baum administration's immigration reform and also to the manner in which votes were counted under the so-called one person/one vote principle. there are probably three, four, five major rulings that were going to go the conservative principles way that are now tied. >> 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 p below? >> in that case, the university of texas won below. it did look like the supreme court was going to restrict
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affirmative action but by a 5-3 vote because justice kagan was not participating in the case because she's worked on it when she was in the obama administration. that's likely to be now a was i administration so that's likely to be a 4-3 ruling and that decision will come out because there's still a majority even though it's a four justice majority. >> some of the other cases that are pending president obama's immigration plan, he's lost in the lower courts, right? in this was the best chance for the administration and at what difference does this make? >> it probably is not going to be a great victory for the administration. if it ends up being a 4-4 tie, but it does leave in place the prospect that in a later term if hillary clinton for example were to win the election or bernie sanders, a democratic president were to replace sajustice scali given that president will
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appoint justice scalia's successor, in that scenario the immigration program could come back a second time. >> unions public sector unions. >> if unions are probably relieved at the juryis exact of is this. they could not be -- could not compel nonmembers to contribute to their bargaining activities which is important to the union's ability to survive. so that's probably going to be a 4-4 tie. a lower court ruling which applied to old supreme court precedent will stand in favor of the unions. >> so one of the big cases this term was going to be on a abortion and this was a test of laws from texas that require
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abortion cases to have standards and privileges at near by hospitals. they lost in the lower court. the lower court upheld the texas standard so what would happen here? >> 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 the court would end up being 4 and the lower court ruling upholding the texas law would stand. it's like lie given that abortion were so fraught that if the supreme court would decide the decision 4-4 the justices
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would return to the subject of abortion. >> finally on the question of contraception, this was a question of religious institutions whether they have to abide by the requirements by the obamacare. >> the administration had adopted an approach that said to religionly affiliated organizations or organizations that had a lot of religious motiva motivation behind them they had to let the insurancer know they woerpt providing that. to the surprise of some the supreme court had signalled that that accommodation was okay, it did enough to address the religious interests of these organizations. they had signals was going to be all right, but the justices had agreed to review that case so it was unclear what the supreme court was going to do. at the very least the administration can take sol is in the fact that scalia skal scalia was going to say that
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accommodation didn't go far enough to accommodate the religious interests of these groups. whether it would otherwise be 5-4 in favor of the administration so it's 5-3 now or a 4-4 tie at the very least the administration won't suffer a 5-4 loss. >> these cases were decided in different ways in the lower courts a tie here would leave the law basically in a jim believe. >> it would be a mess because the supreme court didn't just take one lower court ruling, it take a whole group of cases. so i don't think anybody knows presisly what would happen if that turns into a 4-4 tie. >> 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 case? >> i don't think they had a firm
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list of nominees, but they had a set of people they knew were likely candidates including because the president put those people on to the courts of appeals so i think right off the bat we can identify three to five very likely candidates that they will be able to put back in front of the president in order to have vetted as a supreme nominee and then he will face the question given that the republican senate will say we will not put anybody on this court that will move it 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 they will even if that person can't get confirmed. >> thank you, tom goldstein. a lawyer here in washington who argues cases before the supreme. >> thank you. just to to reiterate that he litigated before the supreme court very helpful there of what the legal consequences are because whatever happens with this appointment with the
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president to replace justice scalia, all those pending cases you heard about abortion, affirmative action, union rights still pending even with an unexpected absence as this one coming from justice scalia passing away today. we're joined now by chief foreign correspondent and our eyes and ears on the campaign trail where this story is drawing immediate reaction wm first of all, big picture you've covered washington for a long time and know these issues. you're thoughts on this unexpected news today? >> it's really an earthquake. first of all on the personal side, justice scalia, the biggest most robust, most controversiial thinker on the court. a charming man, a friend to the justice from the state, his liberal opposite. they love opera. they're on the social circuit.
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i see him all the time with his wife. he was seriously proud of his wonderful nine children, including military members and lawyers. this is a -- obviously a personal story as well, but he's a lightening rod and a poll israeling figure. he was appointed by ronald reagan. he was the strongest figure on the supreme court. you think about the clarence thomas hearings and how difficult those were, but -- scalia is the person who transformed the court in terms of asking questions and peppering lawyers with questions and being very -- very
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controversial and provocative in his question and open argument and he is even more so in private conferences. so he has been a shaping influence on the court. a and we've seen it being said that no nomination and you've seen the former committee chair, now the advice chair saying that it would be -- that the republicans should not block a nomination or a consideration and should not stop the president from performing his constitutional duties. >> let me ask you not as to whether it is good or bad, people will have time to debate this, but it is fair to say it is unusual if not unprecedented to have such a swift reaction from party leadership, not just presidential candidates who have
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their own gauagendas but the fr the senate majority leader immediately saying not that he wants to be involved on this pick, but simply the president should make no pick and this should wait until after the election. >> i don't recall this ever happening so you'd have to check the archives but i cannot recall a senate leader saying at such an early moment, we've barely had time to consider the 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 after a state funeral. the battle lines are drawn and this is the first time in my memory you have the presidency at stake, the judiciary at the highest level at stake and congress of course at stake. all three branchs are in a
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complete battle mode and now you also have republican senators from states like new hampshire where she's in a tough fight against the governor and these are -- this is going to effect republican contests because the supreme court and how these judges 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 experience of being in washington and on the campaign trail where you've interviewed all the major candidates, talk a little bit about how justice scalia emerged as a model. there were cries of no more suitors after other republican
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apo appoint appointees, there were feelings that the chief justice cannot argue with his conservative on academic credential and didn't do what conservatives wanted. i would argue that justice scalia looked like the reagan of legal conservatives, can do no wrong. >> absolutely. he was being an originalist he was the philosophical and articulator of the series and of these beliefs so he had enormous influence. ted cruz among all the presidential candidates has argued multiple cases in front of the supreme court. he has the experience of actually being in that court and making these arguments. so this is going to become -- we're going to see it at 9:00 on
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the debate the republican side made their opening statements and there will be questions and you're going to get i think from all of the candidates a loyalty as to choose a nominee to replace justice scalia if that were a republican president who be in his footsteps. >> nbc's andrea mitchell, thank you for joining us and i hope we can hear from you again as we look towards that debate tonight. i'm joined by rachel maddow. thanking for joining us. i want to get to the politics, which i know you were speaking about earlier on air, but i want to start with your view as someone who covered the loss so closely and has an eye on the supreme court so frequently you're view of justice scalia, the man, his influence, who he was. >> it's a good place to start because i -- i'm absolutely right with andrea where she
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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 i lone 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 has been a washington fikt yur since the 80 doitds and there's a lot of human mourning left before anything else should happen about his death, honestly. i say that as somebody who could not be more ideologic to justice scalia. as a man on the court in terms of his temperament and style and nature, he changed -- he changed what it means to be a supreme court justice and he changed the role of the supreme court in
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american social movements. he is a super hero 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 crew saiding. to be quotable in a way that's going to go beyond the legal analysis of any issue of the day. that -- i don't -- i don't know that we have to think about whether or not anybody can fill those shoes. i'm not sure that there ever will be another person like that on the court. i'm not sure there will be room like that. i think he was an absolutely unique person because of that, though. when you think back on his angry and laugh out loud funny
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dissents on civil rights cases and voting rights and gay rights cases and abortion cases, those were the cases that you and i could quote him off the top of our heads right now, those were usually cases he lost. he was willing to be that big and that quotable and that memorable. i don't know that we'll ever see that again. there was nobody like that before him and it is impossible to believe that anybody will be like that after him. that doesn't mean it's just going to be an outside political fight even if had come at a more convenient political time. >> you talk about his language. there's so many things i want to ask you. i guess i'll start with the point you made about quoting him. i think about his dissents in the gay rights cases. >> lawrence v francis. >> i was thinking about the marriage equality case that was so big to so many americans and
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he said its actual problem was the court making decisions better left to the people through in his view 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 immediate lie grabbed on to, the disease route of the power and a conception of the role of the court as an constitution in america. some would point to that because he did point to the court to make law certainly on the second amendment which i was talking to one our colleagues tonight, but talk about the way he would take something like that and say not only am i going to go against public opinion on marriage equality, but i'm going 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 an reposition an argument on where do you stand on marriage equality, not a
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separation of powers. >> that was part of hi argumentative genius and i think that's why he looms so large as a conservative hero 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 weren't speaking the language of the law. his idea of originalism was that everything he could see in the constitution had been clearly written there by the founding f father fathers, but other things people saw in the constitution is because they were idiots. he had a way of making an argument that anybody who disagreed with him was foreign to the argument. you were never drawn a line between two possible positions. you were either with him or you didn't belong in the room. that -- it makes for -- i don't
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say that as a criticism. it's a very entertaining and very galvanizing way to make your case, but that was always the way he did it. on gay rights cases specifically, he really was anti-gay rights. >> yes. >> he wrote about his moral disgust for gay people. and it led to some very interesting moments. when the sodmy laws were struck down he said in anger, but also very helpfully that the sodomy laws being struck down would lead to same sex marriage being nationwide. he said it like i can't believe you're doing this.
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you realize what it's going to lead to. everybody who supported gay rights in america said we know what it's going to lead to him. for him that was a completely ridiculous response. >> bush v gore is a case that justices bring up. i've seen many defend it in anguish. his famous remark about that was get over it. what does that tell us about him as a judge, last question? >> it tells you what he is as a political figure i think honestly. it's not like none of those justices knew what they were doing and it's not like bush v gore the count of the judges came down to the appointments of the you justices. they're political actors. the politics that tonight are being unleashed about replacing him are going to be bigger than anything we could have imagined.
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this now is going to change the presidential race. this is going to change the race 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 in the presidential race. if the republicans do try to hold a vac ansy 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's going to go on for generations. i think you'll see the president put forward a more conservative nominee. he's going to put somebody forward and if the senate doesn't act on it, all of our politics are knew. >> i was speaking to our colleague early who covered his nomination hearing, she said she
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can't think of other time this fast that was the reaction from the party. others of course pointed out there have been many nominees put forward in election years. so that would be not only radical for our politics, but a significant impact for the governorane. >> thank you. you're doing a great job for this story. great job. >> thank you. we go to our newsroom where we have been tracking the reaction pouring in. it's been hard to keep up with all the reaction given the wide swath that justice scalia cut as both a public figure and someone who was on first name basis with so many people because he loved life, because he was here. yes, we're reporting on his death but he was here hunting
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this weekend in west texas because he was living his life and doing his job. >> so well liked regardless of agreement on politics or not as you have really gotten from your guests so far. one of the questions you have been getting to is what is going to be next in the process of naming a replacement for justice scalia, this has they -- 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 did want to share this one response. this comes from the senate
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chair, the republican from iowa. although he was asked earlier as i guess within the last three hours by the des moines register they at that moment just a couple of hours ago cheuck was saying he wasn't sure what the next steps will be, however we have a statement from the senate chair 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 come knees during a presidential year. given the huge divide in the country and the fact that this president has made no bones to use the court it makes sense we defer to the meern who elect a new president to select a new
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supreme court justice. so that is the senate judiciary chair. you can see the political tones in that. he is repeating mcconles call. he is also saying wait until after the election and just a tid bit he says within the last 80 years we have to look back to 1988 when justice kennedy was confirmed during an election year. so this is just one of those questions that you have looking into amongst so many. >> the death but also what comes next here. i want to go now on that to the political reaction pouring in. this has been a faster pivot to the politics of the appointment process than we would every typically see after the death of a public official like that.
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that may speak to the intensity of this campaign out there. what can you tell us? >> just listening to the conversation in the last few minutes, i guess when you talk about the press dense for an election year supreme court nomination fight which it looks like we're going to be having here, you mentioned the 1988 anthony kennedy was nominated. he was the third choice. that was a process that played out over subpoena months. it started with lewis powell. democrats rallied with the help of the republicans to kill that nomination and then there was a second pick. there were questions about past marijuana use. he with drew his nomination. so certainly he was confirmed in
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an election year, but that was a confirmation that followed a lengthy process that included a one defeated and one withdrawn pick. that was a seven-month process. the question is can the republicans run the clock out through the election. if you can get seven months that would take you into the fall to the height of the campaign and it wouldn't be far from the election. so democrats will try to apply a lot of pressure here, try to get republicans to fold and allow a vote for whoever the president puts up. i have a feeling the republicans will stand hard and fast on this. if you want to go way back into the history books, you could go to 1828, a person was put in the andrew jackson was against his nomination and the jackson forces denied him confirmation
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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 from the republican leadership here is no nominee is acceptable, that is distinct. that is different than the usually back and forth over this type of thing. now that may suggest from the presidential candidates a 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, it is the senate and the grassly has already motor fied as a diplomatic way to say it has modified his position there is no one that the president could put forward that we would move on. >> i think this is the logical continuation of the way judicial
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politics have been playing out and it is the way politics have been evolving where we are evolving in a way where almost everything becomes a partisan fight. it used to be not long ago you would go back to the late 80s and could find justice scalia on the republican side or on the democratic side you could find nominees who were deemed qualified and that was the threshold and they would get strong support from the other party for the confirmation to the court because there was a sense that 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. that's been changing. you look at the votes and this has gone -- i have to say this has gone both ways. you look at the votes on the
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opposition from democrats in 2005 and 2006 wasn't enough to stop the nominees but you had opposition. >> republicans would say that that was mounting on the democratic side and the rule changing has happened from both sides. thanks for jumping on the phone with us. busy on the trail as usual. i want do go to chris matthews here. i want to start with scalia the man before we get to the politics. you're view of the kind of person he was, the excitable and direct strong leader that he was. >> i guess i'm fortunate to have grown up around people like justice scalia. he's a man of his times, a man of his religion. he's a conservative catholic. he's the kind of guy my dad hung out with and enjoyed the company
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of. he was a classic, catholic in the sense of his fiphil see was consistent. he was a man of a conservative belief with regard to the church. someone said he could have been in the vatican. i think in term of his background he was a happy guy, because it fit together for him. it was conservative and holding on to what we have, an original intent. 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. >> talk about the ambition of that project because this was not the william buckly
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conservatism of saying stop or just conserving in the root of the word what we have, this was something that he truly originated throughout his scholarship and then put to force in the courts. when he began, originalism was not a household word. what he said is not only can we conserve, so too speak, but we can actually use this methodology which he said he was applying which was 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. >> i heard him once say he liked law. what he didn't like was finding a truth like in all the land mark cases suddenly brown to brown case and rowe v weighaid.
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he didn't like that at all. for example on the abortion rights he said cancel law and i'll rule and i'll be more inclined to say yes rather than saying there's something inherent in our rights. he was against finding new things in the law, in the constitution, but he was -- at least he said so that he accepted the fact that there was a power to the legislator. the people's representative wanted to do something, that carried a power with him, not just the original words of the constitution. so somehow he put it together, but i think -- i think the guy -- what i could tell of him having spent some time with him alone, he felt he was very much a man of his time and religion and he never saw any obstruction or any conflict. like a lot of catholics, we're
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always dealing with conflicts. we're dealing with american freedom and diversity and liberty and understanding the decisions that justice kennedy came to on matters in sex particularly and whether it was the lawrence case or this case which accepted the fact that he ba basically a notion of same sex marriage being constitutional. i was watching kennedy saying there's a guy from the west and here's is a guy from the east. both the same religion, but different accounts of it. to me it was fascinating and legitimate in both cases. >> let me ask you -- >> very much rooted in their fill fillfies. >> you're such a student of language where words carry force. i want to ask you about one of my favorite justice scalia cases, the 2001 case where there
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was basically thermal imaging that was used to find heat lamps that people used to produce narcotics. police came up with a way with technology to look in the house without going in the house so they didn't get a warrant because they say we didn't enter the house and this went up to the supreme court and although justice scalia is said of course it's a search. i don't care whether you physically entered or not the word search in his view for the matter of constitutional liberty means are you interfering with someone and he said you tgot to get a warrant. talk about that. >> that would be to him like advancing the meaning of the right to race an army as partly of our national defense or to maintain a navy to include an air force. obviously the founding fathers
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had no idea of flight. they couldn't imagine that, but he would say that's just -- his stance of the notion of an army. the air force became the air force a separate branch of the service, but he wouldn't have said you couldn't do that because nobody used the word air in the constitution. he took the meaning of the modern method of searching. i once met a liberal democrat who was a great man and he used to argue if you look at the constitution and the limits on the frequently role that you could always go forward and find it starts with the post office and ends up with the fcc. today he wasn't up to that, but it gets to the question of the internet and those decisions and there is a consistency if you allow for scientific advancement. >> let me ask you something he
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said after his 25 mark on the court. he was the longest serving, though not the oldest member. when asked about his work and live on the court he was asked about his victories and he said he had damn few victories. what do you make of that compared to where a lot of people in congress will put their name on everything. >> i would count some of his victories that he might not count bush v gore for example that confound a lot of us. you're the attorney. what was the supreme court doing in election law when election laws are 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 bush elected president basically by stopping the counting in florida.
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that would be a victory. >> certainly. >> i think a partisan victory for republicans that the court -- by the way that's a good book how they did get involved with kennedy. who was it that brought the court into that and allowed them to superimpose themselves over a state which may be -- i don't deny the florida supreme court court had a political angle to it, but it's the supreme court to become the arbitrary of who is the president of the united states. >> certainly. he along with other chief justices worked very hard to pick cases because they decide what to hear and then decide cases to roll back many civil rights protections and laws within i. i'm thinking in particular the voting rights act. he was careful how he discussed that and didn't ksay it was
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unconstitutional to say how they vote. although we're careful in how we speak of people who passed, in that ruling he talked about racial entitlements and said once they are given they're hard to take away for a ruling that was only about the right to vote that struck people as off base, wrong, offensive, the notion that black people voting was an entitlement. talk about his civil rights as well. >> it was a remedy to let an african-american vote and obviously all that came in try to fix what had been bad public office behavior. those states had been wrong in the denial of a right to vote and they needed to do in there and make sure they didn't do any more damage by coming in with new issues of whether it's so
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called -- what did they call those? literatesy tests. that was not a sense not a right, it was a remedy. the use of the word entitlement is flawed. it suggests you're getting something you shouldn't. yauf been talking about his b k backgrou background. this idea of sexual rights and same sex marriage and abortion, it's impossible to know the degree to which -- certainly to deny the influence of religion on those court rulings. it's very hard for me as a liberal roman catholic -- i do it, but it's difficult to
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disentangle what i know to be the teaching authority of my church, but to recognize that the constitution means something and it means liberty in our countries. it means individual decision making. even when you disagree with that decision, 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 freedom from search, you get into abortion rights you get people into that question. so i think that we're going to look back as a conservative catholic,s a a conservative son of immigrants who tend toing 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. i don i don't consider that a knock on him we have to separate church
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from state. jesus said that. boy that was a tough assertion of the separation of church and state by the savor himself. >> that holdings up today and certainly you don't mean to imply that his religion is all he looking at on the court. >> it's hard in the hours after his passing. i liked the guy. i think he's an american original and he put his full -- his full conscious to work when he was on the court and i think it was clear and that's a pretty good standard even if you disagree. >> i want to repeat one thing you said that overlaps something said that he pursued something he thought was morally right and people's experiences are formed
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by experience. he was bound by the law. he talked about that history and that overlaps what you said. thank you for joining us this day. >> i want to turn to jackson who has been traveling with senator ted cruz who as a former lawyer for of the state of texas and his official capacity and as a senator has emphasised supreme court injured is presence he was one of the very first people that we in our newsroom heard from in releasing a statement in response to justice scalia passing. i know you're out there on the trail and i know he's put out this statement, but let's take a step back and talk to us before today about how the supreme court and justice scalia comes up in ted cruz's campaign. >> not just ted cruz's campaign, it's come up -- he specifically
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justice scalia has come up in a number of campaigns. he's a part of marco rubio's stump speech. he says this line we need nor scalia and fewer sort. each candidate that attended, jeb bush, ted cruz was asked what they would look for in a future nominee. this is something that has been at the forefront of the presidential campaign and is poised to become more of an important issue going forward. >> you're saying that this is already steeped in the audience and crowd and then take us through today when this news broke because as i was discussing earlier with another guest when you talk about conservative politics justice scalia is sort of the ronald reagan of conservatism. talk to us what it was like out
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there. >> and constitutionism too. so we're saying just to give you a sense if you want to get in the moment we were sitting here in the debate filing center when we began seeing reports that perhaps justice scalia had died in texas. nbc working very quickly to confirm that news, but you saw it spread here very quickly almost immediately once we had confirmed the news i received a notification from the cruz campaign and then a press blast he was as you said i think the first presidential candidate to come out with a response. remember ted cruz -- he clerkd on the supreme court for another justice. so he knows this body. he knows this institution very well. you talk about scalia being the kind of originalist guy, that is something that speaks directly to ted cruz and cruz was out with that statement almost immediately and then followed by a number of other candidates followed by marco rubio and jeb
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bush and ben carson. jeb bush said justice scalia was one of his favorites because he took the constitution and the responsibility of judges to interpret it correctly with the utmost seriousness. now it's up to fight for the principals that he espoused. >> ben carson had an interesting statement because he added which is a call to essentially push the replacement for justice scalia on the supreme court until after the election. carson saying it is imprerogative to not allow president obama to nominate an individual to subject university the will of the people. >> that is where it is sometimes a big open question in politics and news, who runs this party? does the senator run this party? does judiciary chairman run this party.
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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 a some ber day is the 2016 candidates are running the party and we've been covering different parts of the story the 2016 candidates did what you said and said that the president should have no appointee. they don't want any person that the president apoints even if it were a republican or a justice scalia clerk. as they said that in the past few hours the judiciary chairman changed his public remarks. so what's happening with you with the base of the republican party seems to be calling the shots back at the judiciary committee. >> at least shaping the conversation and that is because of what's at stake as we move forward in this primary and
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general election. you're asking a very fundamental question here because the person who is going to be selected to be the republican nominee because the person for the party moving forward so it's no surprise we're seeing that effect from these candidates and not to mention senator rubio or senator cruz so they're going to v an influence on the party anyway. >> what else do you see going into tonight? not to play too much prediction, but we know from working -- go ahead. >> i was going to say that i don't know i'm going out a limb by saying it's going to be a major theme in the debate. i think it's clear that this will undoubtly shape the opening moments of this debate tonight. it's what we saw of the terror attacks in the fall i think it was the democratic debate after paris the conversation immediately shift to talk about foreign policy and national
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security. so i think you will hear the candidates talk about this. >> what will be the distinction line because we're hearing them all hit the same point that the president shouldn't get an appointment so what else distinguishes them in a debate on this? where does donald trump draw a line with ted cruz here. >> i wonder who they would pick if they were in that position right now. i don't have an inside scoop on the questions being put together, but that might be a fair question to ask them what would be important to them. >> from the trail, thank you so much. we go now to a former solicitor general of the united states. he was arguing before the justices day in and day out. your thoughts on this news today. >> that's a horribly sad loss for the country. justice scalia was a changer in the supreme court in our lifetimes. nobody had a more profound
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impacted on everything, the way the court does its business. before he got on there he would listen to oral arguments and advocates could get the whole paragraphs and have very few questions asked of them and now it's a whole different affair. 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,en and i jus can't under score 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? >> he's asked me so many hard questions i can't honestly remember one, but basically as you're preparing for an argument
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you think of the five questions that you really don't want to get asked and he would ask them. he's remarkable, but justice scalia would constantly ask you questions and thep han have the follow up. there are some judges in which the questions are really drafted by other people and they're just reading them. justice scalia understood every line in the briefs and knew where it was weak. >> i want to ask you and 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're going to see that image. it's -- it's a sad time there in a court that is an intimate place when you think about nine justices, their views of the law clerks. there's a still photo. again this just tonight of the flag there at half mast in front of the supreme court and a sad
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time there. walk us through what that community is like the people who argue before the court clerk on the court and serve on the court and how they remember justice scalia as a person. >> i suspect that a lot of people like me had tears in their eyes when they heard the news and the tears transcended politics anything about losers and winners of court cases. he was just a first class minded justice and it is a close community. i think justice scalia's best friends on the court, two of them are both democratic poin e pointes. he was a man who treshd.
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>> turning from the personal to the record, i wonder given your experience which only a handful of lawyers have in the whole country, you argued 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, on guns, bush v gore, on the outcome of the 2000 election, they think about cases like gay rights and marriage equality, of areas of criminal law where he has been a proupon ent of tough government power and civil libts where he felt the fourth amendment warranted protection, what cases stands out to you? >> i think the criminal cases are interesting because they
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think of justice scalia as a conservative, much to the contrary i don't think any justice sided with criminal defendants more in the last decade than he has. it's close. i think what he's known for is not any one case or another. it's a method of interpreting the constitution, a kind of strict view that says we are guided by what our founders thought to understand the words in the constitution mean. we go back and ask what was the understanding of those words at the founding of our government and that's a distinction to people like marshal who really saw the constitution as a more living document. this is one area in which justice scalia has changed the names of the game and it has concrete applications in cases like mcdonald in which justice scalia wants to go back to the original way in which the second
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amendment was understood. >> we're looking at the flag flying at half staff in front of the supreme court as well as images of justice scalia. final question to you, justice scalia's record on civil rights criticized probably most vigorously by his detrektors especially the way he waged it. your thoughts on that? >> he was not a man of a few words or shy with his words. he was very strong in his opinions. and in some ways that was an unfortunate thing because there's some words about his colleagues which i think did hurt the court a little bit. at the same time he could count on him to be principal in the way he thought about things and you weren't really surprised when you read an opinion because
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it was a model in clarity. people should disagree with aspects of the man, but at the end of the day we should celebrate this man for being a giant in the law and for giving our country so much. it's a great loss. >> former solicitor. thank you for joining us. as a kid i realized she had a problem when i saw her going through the dumpster. >> it's from japan. >> she loves c

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