Transcripts For MSNBCW The Rachel Maddow Show 20170201 : vim

Ago he died in his sleep. He was at a swanky Hunting Lodge in texas only about 30 miles from the u. S. mexico border and it was a shock when he died. It was a very, very sad loss for his family and in friends. It was also, of course, a political shock because his death was a surprise and it opened up a surprise vacancy on the Supreme Court. And with almost exactly a year left in his presidency we learned that barack obama would get to name a Court Nominee to fill the seat vie kated on the court by theeath of Antonin Scalia. Or not. Even before former president obama named his nominee, even before he named judge Merrick Garland, republicans announced that they would hold open the scalia seat. They would not hold hearings for any obama nominee no matter who the president picked they were not going to consider his nominee. Honestly because the president is a democrat and they didnt believe they had to and so they believed they would not thank you very much. And that has never been happened in our country. Not like that. But tonight that radical decision, not a radical decision by donald trump but a radical decision by the Republican Party in the senate, tonight that radical act by Congressional Republicans it bore fruit awkwardly phrased fruit, a little hiccup in the execution in the end but still. Today i am keeping another promise to the American People by nominating judge neil gorsuch of the United States Supreme Court to be of the United States Supreme Court. Nominating judge neil gorsuch yeah. It was the actual announcement was a little garbled but the president tonight did succeed in nominating a federal Appeals Court judge named neil gorsuch to fill the seat on the Supreme Court vacated almost a year ago by the death of Antonin Scalia but republicans held that seat open for all of this time because they would not allow hearings on a nominee from a democratic president , it is, i know that we all know this story because we all lived it, right . But step back from it, its a remarkable series of events that got us here and now were here. There are protesters outside the court tonight. They are ready to go even before the name neil gorsuch was announced tonight. They were there to protest this nomination not necessarily because of anything specific about him because nobody knew it was going to be him until 8 00. Those protesters were there and set to be there because of the circumstances surrounding this vacancy on the court and surrounding this nomination. Democrats in the senate even before neil gorsuch was announced tonight, Senate Democrats openly mulled whether they should try to reciprocate in kind what the republicans did to president obama with holding this seat open for almost a year. As to whether or not democrats have the power to do that, well, the senator who has led the charge and said that he will lead a filibuster to hold this seat open because this is a stolen seat, that democratic senator is going to be joining us tonight live in just a few minutes. You will want to see that. As for the specifics of this nominee, though, judge gorsuch is most famous nationally for his role in a controversial case bought by the hobby lobby retail chain. The hobby lobby retail chain for years they had provided Health Insurance to their employees that included coverage for various kinds of Birth Control. Then insurance became a point of controversy in obamacare, in the Affordable Care act and once that happened hobby lobby decided that they had an objection on religious grounds that they had religious beliefs as a business and those religious beliefs were now being violated by the Affordable Care act, by the regulations around insurance and the Affordable Care act even though they had been providing Birth Control coverage through their employees insurance all along. They just discovered these religious objections once it became a controversial issue in the Affordable Care act. It was a strange case. It was a controversial case. The Retail Stores claims succeeded at the Supreme Court but the way the case got to the Supreme Court was in court through Neil Gorsuchs lower court where he sided with them on their religious objections. Judge neil gorsuch does not have a subtsunami shl record specifically on the hot button issue of abortion in terms of how both sides react to his nomination. Judge neil gorsuch was confirmed to his current seat on the Appeals Court by a voice vote in 2006. The president described that as a unanimous vote and its a kind of unanimous vote but it mostly means people dont formally vote, it just got approved. Judge gorsuch is from colorado. Judge gorsuchs family has a famous political history because his mom ran the epa for Ronald Reagan in a tenure that ended really, really badly and is a fascinating story. But that was his mom. As for him, how is this going to go . What should we know about him . Joining us now is the Senior Editor and Legal Correspondent at slate magazine, someone i always want to turn to as nights like this. Someone we booked before we knew it was going to be neil gorsuch. Doll ya, thank you for being here. Great to have you with us. Thanks, rachel. Im assuming you booked someone else and it was right down the wire who you called . I was going to summon you both and make you stand hear wearing the same outfit then i was going to have someone in a ball gown pull a spangly curtain reveal one of you but we dont the budget for that kind of thing. Neil gorsuch was a weve known for a few days he was on the shortest short list, that he might be one of the picks, whats your overall view of this choice by the president . In a way its hugely surprising because if you think about the president s most of his cabinet picks hes picked in some sense the most nihilist choice. That is not neil gorsuch. This is not a bomb thrower, someone in any way who doesnt believe in the Judicial Branch and in that sense its surprising because i think disrupters are kind of trumps things so this is an incredibly solid respectable conventional pick that anyone would have made. In once sense its surprising for trump because trump promised us a bluecollar nonivy nonfancy pants guy and gorsuch was on the short list. So in that sense its a funny pick but in every other sense conventional. Hes sort of in the same way that the president attacked Goldman Sachs for having captured Hillary Clinton and having been the great downfall of ted cruzs ties to Goldman Sachs and then he brings on six people from Goldman Sachs into the administration. He is famous for the hobby lobby case, for his role at the Appeals Court level while that case made its way to the Supreme Court. I described that in a short way. Tell me 23 i got that right and why that might be important in terms of controversies or important insight into what he might be like . Look, i think you made this point and its important. The two litmus tests that trump promised on the campaign trail were somebody who was going to support guns and someone who was going to end roe v. Wade and in a strange way he picked a guy who has no actual record on those issues. You can dance around them but in a weird way give than he pledged that those were his nominees, unless he knows something we dont know hes put gorsuch in a funny position. Theres not a tremendous record. I will say on hobby lobby and abortion we know that gorsuch not only voted as you said against the contraception mandate, we know his academic interest, his big book hes written and thought about all has to do with endoflife issues, physician assisted suicide, the sanctity of life, a useful template to think about how he might think about abortion but certainly squarely on these issues we dont have a ton of guidance, we know generally he is scalialike both in his approach, his sort of minimalist textualist approach and scalialike in his politics but on these issues hes a bit of a cipher. On that, because abortion has been such a point of contention for nominees in both parties and they go through this kabuki theater of pretending like theyve never thought about it before when theyre asked about it at their confirmation hearings, weve been hearing noise that antiabortion groups might not be totally comfortable with him. That in the ambiguity there might be some concerns on the right that hes insufficiently antiabortion. Is there any reason to suspect that . I dont think theres reason to suspect that but as i suggested, rachel, i think the fact that trump didnt pick someone who looked like a bill pryor who he promised us, a culture warrior who was coming out blazing for roe and he didnt give that. I would not be surprised if some of the antiroe groups are really pretty perplexed that he didnt make good on the one promise that got them out to the polls for someone that in other ways they didnt like very much at all. Dahlia lithwick, Senior Editor, Legal Correspondent at slate magazine, im sure we will be talking more about neil gorsuch in days ahead, thanks for being here, my friend. Thanks, rachel. 1789, president George Washington got to be the first president to make a nomination to the United States Supreme Court. 1789. There, of course, are benefits to being first. When George Washington got to make his Supreme Court nomination, he got to nominate six justices all at once. Brand new court, got to fill it up. When he made those six nominations in two days the United States Senate Confirmed all six of them. Thats how we got the very first Supreme Court and every president since George Washington would love to be treated like that, white . Theyd love to have everybody confirmed in two days and pick every justice on the court but there will never be another George Washington, that said it isnt usually that hard for president s to get their nominees confirmed speaking as a general matter. In American History the vast majority of supreme Court Nominees have been confirmed and the vast majority of those confirmed have been confirmed by a lot, by big overwhelming votes, theres only been a handful of exceptions in modern history. Reagan nominee Robert Bourque was rejected by the senate in 1987. In the george h. W. Bush administration, in 1991 Clarence Thomas was almost rejected by the senate. He squeaked by on a 5248 vote, the narrowest approval margin for a Supreme Court justice in modern history. There was also a weird period before that, 1968, 1969, 1970, that was like a Bermuda Triangle for the Supreme Court. This was after lbjs triumphant nomination of Thurgood Marshall to be the first africanamerican Supreme Court justice. After that things went off course and over the next few years with johnson at the end of his firm and nixon at the beginning of his time as president between them the two of them air balled on four different nominees for the Supreme Court who were all rejected or forced to withdraw in scandal. But again i think of that as a weird Bermuda Triangle period in supreme Court Nominees. There are exceptions. There was that time period. There was the tough time for Clarence Thomas, Robert Bourque, those were exceptions but that proved the more general rule. If you get to the point where the president is nominating you to be a Supreme Court justice and the senate is considering your nomination to be a Supreme Court justice you are likely to get through. Look at the justices confirmed in the late 20th century. Anthony kennedy, 1987. The vote on him was 970. David souter, approved in 1990. The vote on him was 909. Ruth bader ginsburg, approved in 1993. 963. Stephen breyer, the following year, his vote was 879. Thats how the last century ended. Overwhelming votes on what supreme Court Nominees huge votes, 90vote margins. Thats what they used to get. Liberals, conservative, didnt matter. Everybody got those overwhelming numbers. Then we hit the millennium. This century kicked off with bush v. Gore. With the bush v. Gore decision in t year 2000, the immensely controversial decision in which the Supreme Court actually chose the president in a 54 vote where the votes lined up precisely on ideological lines, conservative justices all voted for the republican, liberal justices all voted for the democrat and because there were five conservatives and only four liberals on the court, thats the reason why we got president george w. Bush instead of president al gore. And then to rub salt in the wound, for the first Supreme Court pick of the 21st century, the first Supreme Court pick after that, president george w. Bush chose one of the lawyers who had advised the bush camp on the florida recount in bush v. Gore. Talk about chutzpah. Ultimately john roberts did very well at his confirmation hearing. He did get confirmed. The vote was 8722 which is narrower than most votes historically but not bad. Then, perhaps a little high on life over how well that went with john roberts despite how bold that pick was maybe a little overconfident, maybe feeling too many of his oats, we then got the Harriet Miers disaster. What was that about . President george w. Bush after his success with john roberts he nominated his old buddy, his old friend from texas whom he had brought to washington to work in the white house counsels office. Nobody had any idea why hemiers than the fact that he liked her and they went way back. That was greet with bipartisan bafflement. Conservative groups ran ads going against it. That nomination lasted precisely 24 days before it was withdrawn. And less son learned apparently, we got samuel alito. Ultimately when the vote came for alito there were 42 no votes against him, all from democrats. The most no votes against a successful nominee since Clarence Thomas. Then thereafter we got a new president and we got president obamas two nominees, Sonia Sotomayor and elena kagan, neither of whom was particularly controversial as a pick but more than 30 republicans voted no on each of them anyway. You see the overall trend here, right . No Supreme Court nomination is exactly like the ones that preceded it but you see the trend here. It has become hardener recent years to get confirmed as a Supreme Court justice. Particularly postbush v. Gore and that process with votes getting more partisan that process was under way before justice Antonin Scalia died last year unexpectedly on february 13 almost a year ago now. And immediately after Justice Scalia died, the night of his death republicans said they wouldnt allow a vote on any nominee to replace him. President obama ended up nominating Merrick Garland anyway. The definition of a noncontroversial moderate choice. The republicans never even held a hearing on him. They have held open that seat for more than a year simply because they didnt want a democratic president to appoint someone to the court. Several republican senators sid before the president ial election that if Hillary Clinton won the election they would continue to hold that seat open for four years, for eight years if necessary because Hillary Clinton is a democrat. New republican rule, democrats dont get to appoint Supreme Court justices. Openly hewing newly defined washington, d. C. Priniple that only republicans can nominate Supreme Court justices. The nominating process was already harder than it was historically and way more partisan and that was before the republicans held