tv The Rachel Maddow Show MSNBC February 15, 2016 9:00pm-10:01pm PST
thanks for joining us this hour. new polling came out tonight showing in the south carolina presidential primary, the republican front-runner, his lead is up to 17 points in south carolina. less than a week out from that contest. the next democratic contest is in nevada. there's not likely to be any significant polling in nevada. the next democratic race for which we've got a significant amount of polling is in south carolina. the latest polling out in that race tonight again from ppp, shows the front-runner for the democratic nomination hillary clinton also has a very significant lead in south carolina. her lead in south carolina now 21 points. let's take a 50,000 foot view. since last july there's been dozens of polls on the republican nomination and
democratic nomination. in all but two of the republican polls, dating back to last summer, donald trump has been in the lead. on the democratic side, in every single one of the national polls taken in this race, actually, every single poll, not just to last summer, there's never been a national poll on the democrat side in which hillary clinton was not in the lead. i don't know if donald trump will win the nomination. i don't know if hillary clinton will win the nomination on the democratic side. let's say for the sake of argument that's what's going to happen. say donald trump will be the republican nominee. hillary clinton is going to be the democratic nomine. we're saying this for the sake of argument. don't be mad. imagine, come november, with
those two candidates each of the nominees, let's say the general election unfolds kind of like a normal general election where states that generally vote republican for president vote for donald trump, and states that generally vote democratic for president, vote for hillary clinton. let's just say we can assign all the states that are pretty clearly red states or pretty clearly blue states go to the expected places. that leaves 10 or 11 state where is the contest is undecided. 10 or 11 swing states. places are you cannot predict the outcome of the election. in the south you could say the swing states are florida and north carolina and virginia. in the middle of the country you could say pennsylvania, ohio, michigan, wisconsin, maybe iowa. in the west probably colorado and nevada. arguably the only odd ball in the east is new hampshire.
if you take those states as the swing state battleground, in this match up between donald trump and hillary clinton in the general election, let's take a guess and assign the states the way we think they might go. say new hampshire go blue. it's a tight battle in virginia, but they go blue. flint, michigan goes blue. all other states go republican. you can nitpick with any of this but in is conceivable. in this scenario, the electoral college is tied between donald trump and hillary clinton. if you don't like that, there's plenty of other combinations that result in the same outcome. here is a different outcome. this one florida goes republican. pennsylvania goes democratic. you end up with a different mix of red and blue in few swing states. here is a scenario on the screen now in which the electoral college is tied. that could happen. let's say in the general election in november, the race is just as close as it could possibly be. doesn't even have to be an electoral college tie to be like one state apart. it's an utterly imaginable scenario. now imagine in one of those
states there's some question, a real question as to who won. it's so tight there's a recount. there's a huge fight over the recount and how it's done before they recounted the ballots, one of those candidates was winning. after that he recounted, another was winning. it's contested whether there should be the recount. stakes couldn't be higher in a situation like that. say if the recount goes ahead, hillary clinton wins and if it gets stopped, donald trump wins. in an incredibly close election, that can happen. it's all happening at the level of one state and it puts the country into crisis. that's hilarious and exciting on election night but you wake up the next morning and you realize there's no pick. there country hasn't chosen somebody to be president and then it wears on and it's not just a day and a week since the election and we still don't know who won. and it's a month since the
election and we still don't know who won. we have faced this scenario before in our recent past. it was harrowing at the time. >> you cannot have this state of disarray continuing days and weeks and months on end. people going into court, political fights, legal fights going on across the country. financial markets are at risk. we have to do something about how we will move on to the next president.
>> tom brokaw speaking the morning after the election in 2000 with nobody knowing who the president will be and a contested recount on the horizon. it's still almost unbelievable that's the way we decided. the supreme court voted on it in a 5-4 ruling. that happened not that long ago. let's say something like that falls at our nation's doorstop again. god forbid, but it's not unconceivable. if that happens this year, between any combination of nominees. to decide, it would have to go to the united states supreme court. what would happen if that had to happen this year? they deadlock 4-4.
then what would happen? the united states supreme court has nine seats. it has not had a yearlong vacancy on that seat since before the civil war. that's what the republicans want to do this year. justice antonin scalia was the longest serving member and he's the highest profile member ever in the supreme court. his death or retirement would be a seismic political event. the fact he died unexpected in office rather than retiring is exceedlingly shocking at a human level but also historically rare. justices just don't die in office that often. in terms of the nature of his death there's been some reports yesterday and today that he had seen a doctor several times recently in the lead up to his
death, but no sustained reports that he was in seriously ill health. he was not the oldest justice on the court by a long measure high pressure. he became only the second supreme court justice to die in the last several years. you can see the size of the headline. what is that a six column headline giving some sense of what a huge political event chief justice rehnquist death was. the political impact of justice rehnquist passing seems quantity. after all he died in 2005. it was just after george w. bush was reelected. he was a conservative justice
due to be replaced by another conservative justice appointed by a republican president who had a republican senate to work with. it was a huge deal at the time, but it was nothing like what we're about to see happen on the issue of succeeded justice scalia. because the universe as way of being captain obvious, naturally this happened on president's day weekend and it happened on president's day weekend and it happened just as george w. bush, of bush v gore found his way back onto the campaign trial since his presidency. george w. bush who was made president by antonin scalia. he did his first overtly political event. jeb bush is polling in single digits in south carolina, but he's hoping to improve his standing. that's like all the stars are aligning in big blinking arrows to point out what happened here and this issue of the future of the supreme court, this is a really freaking big deal.
on election day this year, justice scalia would have been 80 years. justice stephen briar will be 78. justice anthony kennedy will be 83. because so many of the justices are of advanced age and because the older justices are a mixed ideological make up, we have known the next election would be huge. nobody knew they would come into such stark relief this fast and in this sad way. in terms of what happens next, there has never been a situation exactly like this. if you look at the history of the court, on average, once a president nominated somebody to be a justice, on avenuage, it
takes 25 days to confirm the nominee, to reject that nominee or for that person to with draw his or her nomination. on average, it's 25 days. the longest it's ever taken is 125 days. president obama has 342 days left in office. even if the senate decided to take as long as it ever has taken to confirm or reject his nominee, president obama would still have time to put forward not one but two nominees with the remaining time he's got in office plus some change. if the senate acted on president obama's nominee as quickly as it has done so on average over the course of our american history, president obama has time to make 13 different nominations. if the senate keeps us a pace on par with the historical average. there's nothing about having a year left in office that precludes president obama from replacing justice scalia on the supreme court.
we are at a very unusual time in american history where the republican party appears to be saying with one voice, that they believe a new, for the first time in american history, there can be no confirmation of a new supreme court justice in the president's last year in office and the president should not nominate a potential justice. since the year 1900, in a president's last year in office, there's been at least eight occasions on which a presidential nominee has been put forward or voted on for the supreme court including in president reagan's last year when kennedy was confirmed be a democratic controlled senate in 1988. now the republicans have decided new rule, presidents aren't allowed to do that anymore. at least this president isn't allowed to do that anymore. this president, in particular, for the first time this american history is not allowed as a president to fill a vacancy on the supreme court. apparently, just because he's this president.
everybody expected that the republican controlled senate in 2016 or when ever it happened would be a tough environment for any barack obama supreme court nominee. justice kagen only had five republican senators. justice sotomayer only had nine. nobody expected it would be like back in the day when anthony kennedy was confirmed you nam mousily. nobody expected it to be like that. i don't think anybody expected within an hour of the announcement of his death the top republican would warn that president obama shouldn't try to make a nomination. this was the statement from justice -- excuse me, from republican senator mitch mcconnell.
this vacancy should not be filled until we have a new president. the american people should have a voice in selection of their next supreme court justice. the american people do have a voice in the selection of their next supreme court justice. they weighed in by the millions in the presidential election of 2012 when the american people elected barack obama to a second term as president of the united states with all the powers, including appointing supreme court justices. the american people elected him to a second term that ends in january of next year. he's president till then. the republican position in washington is that the supreme court should have a vacant seat held up until president obama is gone from office. that is a position of almost unprecedented radicalism in american history and american politics. you probably have heard over the last 48 hours or so people throwing around the idea of this being a constitutional crisis. i think that's premature. it will no longer be premature
if senator mcconnel follows through. he's also the guy that said his top priority in the u.s. senate was to make barack obama a one term president. things he says does not always turn out to be things that he does. we were already having a remarkable year in u.s. politics, right. we're already having a year in which a hypothetical about who the republican party might pick as their nominee has to center on the prospect of donald trump as the nominee. he really is winning in all the polls and he just won new hampshire and about to win south carolina. we're already having a year that crazy. we're in a crazy time and in some ways an unprecedented time. what is being threatened over the supreme court vacancy, this is not, you know, an election. this is not somebody's up and somebody's down. this is not a policy fight. this is not a partisan fight. this is different by an order of magnitude.
this is what is the structure of our government? democrats don't like republican presidents. republicans do not like democratic presidents. we get it. as a nation, we the people, get a fully functional united states supreme court. republicans in washington wish president obama was not elected in the first place. they wish he was not reelected in 2012. they wish he was not president today. now that he is president, and he remains president, they've made it clear he would stop acting like it. wishing is one thing. you cannot insist it. there's now eight justices on the united states supreme court, which requires nine justices. we suddenly, in the midst of what is a chaotic political system has bumbled into not yet a constitutional crisis but right now a giant stress test for our democracy.
house i've been quiet in public square. eight years in the limelight was plenty. laura and i are really happy in what she has described as the afterlife. we spent a lot of time on our ranch where we have become tree farmers. gives me a lot of time to practice my stump speech. i've written two books which surprised a lot of people, particularly up east who didn't think i could read, much less write. i've been one to defy expectations. i've been misunderestimated most of my life. it's a real shock to people i've become an oil painter. let me assure you i know that the signatures are worth more than the painting. i want to thank the brother for giving us something to do today, something important. >> george w. bush speaking at campaign event in south carolina on behalf of his younger but taller brother. that happened because the universe has a way of reminding us of the magnitude of what lays before us as a country. it was over 15 years ago when the supreme court was called onto decide who the president would be. today jeb bush joined every other republican candidate and most of the rest of the
republican party in insisting that president obama should not be allowed to choose a new justice for the united states supreme court to replace justice antonin scalia who died unexpectedly in texas at the age of 79. joining us is somebody who has been at the heart of battles. she's the founder and president of the alliance for justice. thanks for being with us. i'm sure this is a very busy time for you. >> thanks so much for having me. it has been busy. stunning developments over the weekend. >> i expect there to be a fight in washington over any nomination. i knew if president obama had the opportunity to name another justice, there would be a fight. i did not anticipate the republican party saying he's not
allowed to replace a vacant seat on the court because it's his last year in office. you're a real veteran, did you know this was coming? >> you know, i think you have to look at the previous years of this administration and week after week, year after year, republicans have blocked judicial nominees. in fact, many have not permitted candidates to get a vote even though some of those candidates were initially supported by republicans. we have seen over the years systematic obstruction, delays in the senate. i'm not surprised but i continue to be very disappointed. i certainly think this strategy of simply not permitting a vote or even a hearing of a supreme court candidate will backfire on the republicans.
>> when you say it will backfire, it's how i feel too, but i've been thinking about how timelines tend to stretch out and morph a bit in presidential years. as somebody who has worked on supreme court issues over the course of several presidencies, are we seeing this as one of the objects closer in the mirror than appears. is there any way to tell how important an issue like this will be come voting time in november? how front of mind the supreme court will be in this election and over the course of this next year? we're still nine months away. >> two points. i really do think the american people will see this for what it is, simply a political stunt. i don't believe they will sit back and allow one party to deny a president from appointing someone, and i think they will insist at some point that the senate carry out its constitutional duty of advice
and consent. having said that, i think the longer republicans put up a fuss, the more outraged people will become and the longer it takes for the seat to be filled, i think the angrier people will get culminating in this issue being front and center in the election this year. this is really a defining moment for the court. one for the country and i think republicans will, through their pranks and politics, only aggravate the situation and galvanize people to really pay attention to this critically important issue, and that is the supreme court.
there will be three other justices in their 80s by the next presidential term, which means that this could just be the first step of a constitutional crisis. who knows what's before us. it seems to me, and will seem to most people that the senate ought to do its business, carry out its task and confirm what we all expect to be a very able, stellar candidate for the supreme court. >> thanks very much. nice to see you.
when the news broke that justice scalia died, the paper that broke it was san antonio express. the news was almost too surprising to absorb. he was found dead of natural causes saturday on a luxury resort in west texas. as the news started to circulate, the national press struggled to catch up to the san antonio paper and confirm the story. in fairness, this started off as a startling story. it's very rare for a supreme court justice to die in office. it's happened one other time since the 1950s.
beyond just the basic, hard to believe nature of this story, there's been some startling details or maybe startling lack of details about what exactly happened here. after the staff found his body in his room it then took them several hours before anybody was able to contact a justice of the peace who would then move ahead with a declaration of death and disposition of body. when they did after several hours find a justice of the peace it was presidio county judge. she pronounced him dead over the phone without seeing his body. she said she made her decision based on the advice of law enforcement at the scene and basd on a phone call with his doctor. in terms of getting a more definitive cause of the justice's death, there was no autopsy performed on his body. she decided it should be done but then changed her mind.
the u.s. marshal service is responsible for the security. marshal service is very, very good at what they do. they said that justice scalia declined the opportunity to have marshals with him and there were no u.s. marshals on scene when he died. you put those things together and one of the things that's already started happening in the immediate wake of the sad death of justice scalia is there's going to be a lot of conspiracy theories about the justice's death. the mother of all, alex jones is insisting that not only did president obama kill justice scalia but president has his next two victims lined up already and they have donald trump and ron paul. ron paul, really? yeah. the other thing that's going to happen in the immediate aftermath is this supreme court term is now turned on its head including what amounts to reversals now of some of the most controversial policy of our time.
he was the first virginia governor to face indictment. he was convicted in 2014. his conviction was upheld. he was sentenced to federal prison time. the sentence came down last january. he's still yet to set foot in prison. that's because the united states supreme court agreed to hear his last chance hail mary appeal and the court said he could stay out of prison until the supreme court had chance to rule on his face. now, nobody knows for sure, but justice scalia, who died unexpectedly this weekend was seen as one of the justices who was most likely to have been sympathetic to bob mcdonald's case. now that he's passed away, it's that's less likely that he will find five supreme court justices
to rule in his favor and keep him out of prison. with one empty seat now on the court, if the court deadlocks at 4-4, the practical effect of that is that the supreme court will have had no effect on his case and the lower court ruling will stand and he will have to report to prison at long last. that's just one little thing. that bob mcdonald story is like the least consequential case hanging. joining us next somebody i have on speed dial under supreme court emergency. it's great to see you. >> i know the bob mcdonald's isn't the end all be all but i wanted something that will materially change because of what happened this weekend. did i explain that right about what will happen? >> that's what's going to happen. fourth circuit ruling stands, i
think he goes to jail. >> what are the high points we should be looking for? >> this term was going to be nuts anyhow. we had affirmative action on the docket, the contraception on the docket. we have voting rights and then the court went and took obama's immigration reform. all of that now is every one of those is thrown into question. those would have been 5-4 cases. >> let me ask about the immigration case. as far as i understand this and i'm not a lawyer and don't watch the stuff nearly as closely as do you and other people in this business. as far as i understand with this immigration case is there's a lower case that said, no, president obama can't do what he wants to in terms of his immigration policy. other courts have not weighed in on the issue. >> that's right. >> if other circuits did way in and they had a contrary ruling, if the supreme court was 4-4, which precedent would hold? would it be legal in some places and illegal in others?
>> yes. >> in case texas wins in the fifth circuit. you're have in some jurisdiction where is the court held something and that's the law and other jurisdictions where the court went the other way, it's not the law. you're going to have patch work around the country where things that are fundamental constitutional questions. this is what the court does. it take circuit split, they can't get resolved. >> on the abortion case that's where it's the fifth circuit and said texas very extreme anti-abortion laws it could stand.
if some other circuit strikes down laws like that, does your constitutional right just depend on where you live or in limbo? what law holds? >> in texas and louisiana and mississippi, the fifth circuit states you'll not be able to get those priors. the clinics shut down. if you're in a jurisdiction where the court never ruled, you'll get it. you'll see a country in which it depends on where you are. if you cross state lines your constitutional rights change. >> this seem fascinating and also utterly untenable for any significant amount of time. it's one thing to have a period of limbo, which we know things will be settled but this the political world people are talking without apparent alarm about keeping this vacancy for a year or however long it takes. that would be an unusual and difficult constitutional situation for the country, wouldn't it? >> it just means that the uncertainty persists opinion
it's really interesting at a moment where you're looking at kind of congress blowing up and you're looking at the powers of the presidency blowing that they will take the court with them. basically, hobble all three branches of government simultaneously. it's really, really difficult to go on for huge lengths of time with a 4-4 court. >> i have a feeling i'm going to be calling you more frequently in days ahead. thank you very hutch. >> thanks for having me. all right. told you this is a big deal. this is a freaking big deal. this needs to get sorted out. we'll be right back.
in 2005, president george w. bush got the chance to fill two vacanies on the supreme court. in the midst of that process as president bush was trying to get the seats filled, justice antonin scalia was asked what he thought about the way we put justices on the court. >> are you concerned that the supreme court nomination process has become too politicized? could you be confirmed today? >> i don't know.
because of the way my job works, i'm usually chained to my desk. i was lucky enough to leave for the best possible reason. i got a seat at the supreme court in the orlando arguments in the big case of the voting right acts. this was the case where they gutted the voting rights act and lots of states that had been blocked from making voting harder suddenly, they got the green light to put up new barriers to voting. it was a big case. it was amazing to see that history get made. when you get to see the justices this person, not only do you get to see the unspoken body language and reactions and the
way they treat each other on the bench, you also get to hear the reactions from the crowd gathered to hear. i can report from first hand experience that justice antonin scalia said something that caused the crowd to gasp. because of the way the justices were miked, that gasp from the room was not recorded for history, but i was there. i can tell you it happened. in response to justice scalia explaining away why, in his view, congress voted repeatedly and unanimously to reauthorizing the voting rights act. >> this last enactment not sang l vote in the senate against it. and the house is pretty much the same. now, i don't think that's atributable to the fact it's so much clearer now that we need this. i think it's attributable very likely attributable to a phenomenal that's called perpetuation of racial entitlement. it's been written about.
when ever a society adopts racial entitlements it's difficult to get out of them through the normal political processes. >> the perpetuation of racial entitlement. justice scalia was against the voting rights act. a moment like that happens and you realize what he's arguing is that the congress is too cowardly, too scared to get rid of the voting rights act as they should because they have been racially blackmailed. the supreme court should take it out of their hands. justice scalia once compared enmouse to gay people to enmouse against murders and animal abusers. just a couple of months ago oral agents said something that resulted in gasps throughout the courtroom.
>> to achieve a level of campus diversity that improves learning, race must be a factor in admissions. could it be that affirmative action harms some students. >> there are some who contend it doesn't benefit african-americans to get them into the university of texas where they do not do well as opposed to having them go to a less advanced school or a slower track school where they do well. >> he said some studies show that most black scientists do not come from elite universities. >> there's courts from lesser schools that they feel they are being pushed ahead in classes that are too fast for them. >> that produced a few gasps in a courtroom. >> justice scalia on how black people and higher education should go to slower track schools because they are more likely to do well there.
there's a reason justice scalia was so polarizing. that kind of stuff made him not just a conservative justice, it made him the conservative rock star of this court and made him a leader for the conserative for the majority court. part of reason of succession is such a big deal is when president obama does replace him, for the first time in a generation, there will be a majority of democratic nominees on the court. conservatives are losing their rock star but conservatives are also about to lose their majority, and that is why everybody's freaking out. president obama saying he
president obama saying he plans on nominating a successor to justice antonin scalia in due time. on previous retirements president obama has taken about a month to name a nominee. i think nobody expects him to wait that long this month. joining us is kenji oshina. the chief justice professor of law at nyu. >> thanks for having me. >> very unexpected circumstances with huge political
consequences. who do you -- who are you looking at, what type of person, when you're thinking about who president obama might appoint, what are the sort of characteristics you think we ought to be looking at? >> i think there are characteristics in ordinary time and then there are the characteristics -- >> yes, exactly. >> -- like in this particular historical moment. i'm just going to go with this particular historical moment which i think amplifies all the things he would usually look for. you could look for somebody who was confirmed unanimously to the d.c. circuit, which is a feeder to the united states supreme court like sri srinivasan. he'd be the first asian-american on the united states supreme court. i think that's something that must have crossed president obama's mind at some point. but going back to what you were saying earlier in the show i think the only real power that president obama has is the power of outrage on the part of the american people of how there needs to be a greater sense of outrage about the fact that this is completely unprecedented, that president obama not only has a mandate but a duty to fill this position, that your constitutional rielths don't fade in and out like a cell phone signal depending where you are in the country to borrow a phrase of yours.
i think he might actually look for someone who is more high-profile in the public sphere along the lines of a kamala harris or loretta lynch. >> in order to heighten the public focus on the stakes. >> exactly. because nobody really focuses on the federal judiciary as much. but i think once you start looking at attorney general of the united states or you start looking at political figures that they have a kind of earl warrenesque appeal and it might be that kind of -- you know, earl warren was put on the court at a very contentious era during brown versus board and i think he was put on because he was a politician. he was not a judge's judge and it was seen that this is such a royal period, not only in the country but for the court that it would actually take a politician to smooth the water. >> if this were more normal times, if this weren't this particular circumstance, are we at a point where we would be expecting president obama to be considering only judges, only people from sort of within that part of the legal world for a seat like this, or are we at a time when it's becoming more fashionable or popular at least
to consider another politician, a cabinet official, a senator, somebody else with a different kind of record of public service? >> i think elena kagan's nomination to the supreme court was a game changer. obviously, it was a successful one. >> having not been a judge but having been a distinguished legal mind in other ways. >> absolutely. she was the dean of harvard law school then went on to become the solicitor general of the united states and argued a bunch of cases before the supreme court but before she sat on the united states supreme court she had never served as a judge at any level of the federal judiciary. so if that's a kind of bellwether or harbinger of things to come then that could be the way to go. chief justice john roberts has said in the past at least that he's very proud of the fact that it was a judgeless court before he came onto the court it was all judges. but i think that may actually be changing because i think the court has a real need to speak to the country in more direct ways and not to be part of like the cognoscenti or to borrow from justice scalia's language himself not to be with the templars rather than the valeans.
i think we need people that are actually out there in public life before they go onto the court. >> and i think your point is taken that in addition somebody like that may have the ability to focus public attention on what is now going to be an absolutely massive and massively consequential political fight. kenji yoshina, professor of constitutional law at nyu and all-round smart human. thanks so much. >> always a pleasure. >> lots more ahead. stay with us.
maybe he'll nominate somebody else who has been through senate confirmation recently like, say, homeland security secretary jeh johnson or attorney general loretta lynch, both of whom are distinguished attorneys, both non-ideological and well respected, basically non-controversial members of the obama administration. also both recently vetted and confirmed by the u.s. senate. or maybe he'll just cut to the chase and pick an actual senator. imagine like a senator who's a centrist, who doesn't have any enemies in the senate or in the world, squeaky clean, somebody on the judiciary committee maybe. somebody who's a woman. somebody who's like a former prosecutor. it's like the fantasy football supreme court nominee you would invent from the most confirmable parts of other people. it's also the biography of senator amy klobuchar of minnesota. centrist democratic senator who does not have an enemy in the world, has a squeaky clean reputation, and is a former prosecutor. that is why you are seeing amy klobuchar's name on the list -- on the short list in terms of a potential successor to justice antonin scalia.
and amy klobuchar will be here on this show live tomorrow night. until she cancels at the last minute because she's being vetted for the supreme court. that does it for us tonight. we'll see you again tomorrow. now it's time for "the last word" with lawrence o'donnell. good evening, lawrence. >> rachel, if she cancels, you have breaking news tomorrow. >> it's like do i want to wait by the phone, hoping and also not hoping that she calls? >> that is a perfect setup. >> thank you. >> that's perfect. thank you, rachel. >> appreciate it. >> thank you. well, the united states senate used to confirm supreme court justices within days, or sometimes at most a couple of weeks of the president actually nominating them. and they used to be confirmed without being asked a single question by a single senator. what changed all that? what we're doing right now. television. >> i plan to fulfill my constitutional responsibilities