Well show you the ballots on the senate floor after the brutal silencing laugh night of senator Elizabeth Warren. The decision s by the judges of the Ninth Circuit which may come later this week could test the limitations of president ial authority and expected to be ultimately be appealed to the United StatesSupreme Court. Today President Trump defended his authority and attacked the judges who will render that decision as well as the court system, itself. I listen to lawyers on both sides last night, and they were talks about things that had just nothing to do with it. I listened to a panel of judges and ill comment on that i will not comment on the statements made by certainly one judge, but vi have to be honest that if these judges wanted to, in my opinion, help the court in terms of respect for the court, theyd do what they should be doing. I mean, its so sad. We havent had a decision yet,
strong point. So he invited the discussion by the court as to who has the ultimate responsibility for keeping america safe. And the answer, we have a division of authority, we have a separation of powers. Were the only country in the world withhere the You Disjudic Equal to the presidency. Of course the judiciary has a role to play in balancing the need to keep us safe against constitutional violations such as those alleged by the state of washington. So i think the justices will eventually decide this case, but the judges yesterday focused on the right issues, on standing, whether the Washington State has standing, on whether the injunction should be rescinded. I think the injunction wont be rescinded. I think the Solicitor General is going to have an uphill fight when it comes to the Supreme Court on the mares merits of t because i dont think hes persuasive when it comes to making an establishment case, anEstablishment Clause argument. How do you know, mr. Purcell, how the president came to this decision to issue ordthis order . How do you know he didnt it for the most political reasons, i promised to people who voted for me id do some kind of ban, im going to do Something Like this. I dont think were going to only face dangers from those sempb k seven countries. We might. This will get me through the night. How do you know it wasnt intended to stop muslims from coming into country due to their religion . How do you know his mind . If its not written in the order. Its common to look behind the state of motives for a governmental action. The same action can be constitutional or not depending on what motivated it. For example, if a city passed an ordinance saying you have to shovel your sidewalks on saturday mornings, that might be perfectly fine but if the reason they did it was to block Orthodox Jews from living in city or discriminate them, then its not fine and its unconstitutional. Here its an incredible amount of evidence that the president was motivated at least in part
even on religious grounds. It cannot say were going to help people who are persecuted because theyre christian and not help people who are persecuted because their muslim. The American People saw a candidate, trump, who could be quite nimble, the three of us know how nimble he can be. Shifted from saying it was going it be a muslim ban, unconstitutional, to say it was going to be a ban of a country or origin or where people are coming from. I go back to the case of pr President Obama signed, those seven countries determined to be insufficient in their vetting procedures. Theres no way to know what they were letting go on in their countries, themselves. There was a ban on people who had gone through those countries or at least more serious vetting procedure. They wouldnt get visas automatically for ending up going through europe. Question is if that was close enough suppose obama had issued this executive didnt th bill was strong enough, im going to go ahead with an Executive Order on the same countries. Would you have the same suspicion the president of the United States had religion in mind to punish a religion . Would you have that same suspicion of President Obama or
president clinton . A couple of points s about that, chris. First of all, what was in place before, what Congress Passed and what President Obama implemented was nothing remotely like this, was not a ban of people traveling from those countries. It was a denial of visas. It was they did not get a waiver from the normal right. Visa requirement. Second, as i was saying before, you do have to look at motives. The exact same policy, and the Supreme Court had been very clear about this, im sure professor dershowitz would agree, the exact same policy can be constitutional or not depending upon what motivated it. If the motive was to argumetarg people based on their religion, its unconstitutional and thats what were alleging here. The Supreme Court also said if there is a good secular purpose, secular motive, dont you think even when trump i dont defend him, i dont like this mollpolicy at all. I hope you win the case. Thank you. Dont you think when he said muslim ban he had in mind a ban against people who would bring terrorism to the country . He doesnt really care about punishing muslims. If he did, he would extend the
ban to 25 or 30 muslim countries. He focused on the muslim countries that he thought risked islamic terrism. Remember, the difference between the Obama Administration and trump is obama wouldnt use the term islamic extremism or islamic radicalism or islamic terrorism. Trump uses that term and thats his right. He was elected president. Isnt he entitled to implement that policy by saying it is that were focusing on and, therefore, its no accident that were focusing on seven countries that are muslim. Were not including armenia or israel or any other country, by the way, if he did include armenia or israel, would you say that solved the problem because here you have a Christian Country and a jewish country as well . Well, chris, let me if i can go back to your first question, i mean, i do think we have raised very serious questions about whether security was really what motivated the president in issuing this order. If it was really about National Security, one of the points weve been making our case, why
didnt they figure out before they issued it whether it applied to half a Million People who are already here on green cards from these seven countries. . If those people are a threat, those are half a Million People who are already here. The white house hadnt made up their mind before they im not an attorney but let me ask you the problem. This comes down to human ability, our ability to read minds. Used to have guys like dunninger who go around audiences. I remember that. Would go around, say i know whats in your mind. We found out those were cons. Nobody can read somebody elses mind. Studying politics 40, 50 years, i thought you cant tell whats in a politicians mind because theres always a mix of things, always selfinterest, almost always. Some kind of grander interest. Some kind of doing the job they were elected to do or wanted to have the job. Its always a mix of things. How do you know this is a ban purposely an antimuslim ban when knowing trump like we all know, his Show Business is so much stronger than his depth, always bigger in when hes
trying to sell than what hes thinking. He wasnt against the iraq war. He said he was because that works. You really think hes prolife . He says he is. It works. Could it be if you followed a pattern of his behavior, not what he said, what Rudy Giuliani said, what he said before, follow how trump works. Its what will work. Thats what he does. Could it be hes doing this to get through the night . Going to do some kind of ban, my people up in erie, pennsylvania, youngstown, ohio, were counting on him to do something, so im going to do something. Of course im not just worried about those seven countries. The guys who attacked us on 99 11, egypt with the brains and the thug s came from saudi arabia. It could be its just another day in politics for donald trump and how do you know thats not true or the other is strew ortr doesnt like muslims . How do you discreetly think through all that and come out and say im a judge, im going to tell you what he was
thinking. I dont know the answer to that, do you . How do you know what anybody Elis Thinking . I cant read the president s mind. What i can cite is the things he said publicly which it provides a shocking amount of evidence really right off the bat of how this was intended. And our argument at this point, remember, you know, for those who arent lawyers, normally you dont have to prove discriminatory motive until later in the case after youve had a chance to get evidence and that sort of thing. One of the points i was making yesterday was that theres already a rather stunning amount of evidence that this was intended to target muslims before weve even had any opportunity to look at anything like, you know, emails between giuliani and the president s staff or conversations that happened between people about the goals. I do think, agn, the fact that this was done in such an irregular way, at it s not requested by the National Security agencies, it was barely if at all reviewed by then, theres a lot of thats where my head was going, that it was political. Im sorry, youve been a great guest and youre doing great
public service. I want to get back to professor dershowitz. You said youre rooting for mr. Purce wil purcell, explain, unpack that if you can. I think the policy is terrible. I think the president should rescind it, go back to the drawing board, do exactly what mr. Purcell said, go through the National Security council, consult with his new Attorney General and draft a rule that would pass constitutional muster. I dont like this law. So i hope he wins, but on constitutional grounds, i think he has a weak case on Establishment Clause. And if youre asking Oliver Wendell holmes once said the job of a lawyer is to predict what the courts dwoil in fa s will d. I predict he will win the early rounds and may win in the Ninth Circuit because the Ninth Circuit has judges who are both liberal and conservative. When it comes to the Supreme Court, its going to be a very, very hard sell on the Establishment Clause particularly. Theres going to be a difference between people in the country,
green cards certainly, people in the country legitimately, and the family from yemen who have never been in the country, they just apply for a visa, they want to come in, they have no constitutional right. And i think the state of washington will have a hard time proving that they have standing to assert the right of the family in yemen to come into the country for the first time. So, yeah, i hope he wins, but im not sure hes going to. Okay. Thank you so much. Noah purcell. Allen dershowitz. Thank you so much for your brains. Anyway. We continue to watch the ongoing vote in the United States senate to confirm senator Jeff Sessions of alabama to be the next Attorney General. That vote coming after an unprecedented day, unplus de of protests on the floor of the senate as republican Majority Leader silences senator Elizabeth Warren for reading a let r by dr. Martin luther kings widow. Well have an exclusive interview with tim kaine coming up, the 2016 Vice President ial candidate, when we return. This is hardball, where the action is. Your Insurance Company wont replace
welcome back to hardball. We continue to watch the United States senate, right now holding a Confirmation Vote on alabama senator Jeff Sessions for Attorney General. Earlier this evening, senator tim kaine of virginia delivered an impassioned speech opposing this confirmation. Doing so, senator kaine told the story of richard and mildred loving, the couple jailed in 1959 when Interracial Marriage was illegal. Heres senator kaine. 1r50 years ago the Supreme Court struck down Interracial Marriage in this country, but mr. President , the case started with a couple who having nowhere else to turn thought if we write the Attorney General, surely he will be a champion for us and he will help us redress this horrible wrong. Thats who the Attorney General needs to be. Im joined right now by
senator tim kaine of virginia. Of course, i love the fact you went back to Bobby Kennedy. I cant think of a better person i thought you would, chris. Yeah. Let me ask you about the i salute for you that especially since you represent the commonwealth of virginia. Right. That movie is a great movie, actually called loving and its about loving, actually, not just a family name. Let me ask you about this charge from Elizabeth Warren and, of course, it was initially made by ted kennedy and it was made by Coretta Scott king. Is it fair to judge a persons soul or their conscience, whatever you want to call it, their being, by who they were 30 years ago . 31 years ago . Is that fair . Greta van susteren before the show brought it up, she offered it as a rhetorical question. I offer it again to you. Is it fair . Chris, if you dont have any oaf oa other evidence, im not sure thats completely fair. It would make you ask questions but it would not be completely fair. In my speech on the floor, and look, Senator Sessions and i, we know each other. Im a friend. We have gone on codells together. I dont think he should be Attorney General because his Voting Record in the senate, even recently, suggests hes not going to be a champion for civil rights. So im not making a judgment about his character Lets Go To Bobby but im making a judgment about whether he can be a champion. Lets go to the Bobby Kennedy if he gets a letter tomorrow morning when hes Attorney General from an africanamerican man or woman, 80 years old, say i dont have a drivers license, one thing i want to do is go to the score when i want to go to the store, vote easily. Are you going to help me . Do you think Jeff Sessions will help that person . I dont have the confidence that someone writing e ining inn Voting Rights or immigrant writing in worried about being deported. I dont think theyll feel confidence. In fact, i dont think theyll write in. The Attorney General needs to be seen as a champion for civil
rights and thats not been Senator Sessions record on lgbt equality, on Voting Rights, on special education. People wont see him as that champion that they saw Bobby Kennedy and others and that was one of the reasons i decided to oppose him. Weve had people who have risen up from their roots, may come from a part of the country that was segregated, people like that, klan members, bobmembers. Bobby byrd. Have risen above the local thinking, parochial thinking. You dont think mr. Sessions is capable of that . The deep south. Hes not able to transcend that and become a True American Lawkeeper . Chris, i havent seen the evidence. Heres an example. Just a couple years ago the Supreme Court struck down a big chunk of the Voting Rights act. I know. Section 5. He said that was good news. And when we tried to put together efforts to fix the Voting Rights act, fix the problem that the court said was a problem, theres an easy fix. Hes not been engaged in that. Im with him on the armed
services committee. We had a Bill To Ban Torture by any agency of the United States government that got support from more than threequarters of the senators, very bipartisan. This was a year ago. Jeff sessions was one of the handful of people who would not sign on to a torture ban. I dont want an Attorney General serving with a president who says he thinks torture is okay, who thinks torture may