GOING AFTER CLARENCE THOMAS. AND THEN WE WERE OFF TO THE
RACES.
RACES. >> SO KENNEDY OF COURSE WAS A
DECIDING SWING VOTE ON THE COURT
WHEN HE VOTED WITH THE FOUR
CONSERVATIVE JUSTICES, THE COURT
UPHELD THE TRUMP TRAVEL BAN,
GUTTED THE VOTING RIGHTS ACT AND
ALLOWED CORPORATE MONEY IN
POLITICS.
POLITICS. AND HE VOTED WITH PROGRESSIVES,
ALSO HIS 2015 DECISION STRIKING
DOWN STATE BANS AGAINST SAME-SEX
MARRIAGE.
MARRIAGE. >> SO, TOM, WHAT ARE THE AREAS
THAT WE SHOULD EXPECT TO SEE THE
BIGGEST SHIFT?
BIGGEST SHIFT? I READ THERE WERE 50/51
DECISIONS WHERE KENNEDY WENT
WITH A LIBERAL MAJORITY WHERE
YOU HAD THE CHIEF JUSTICE
WRITING A DISSENT.
TALK ABOUT THOSE CASES.
ALSO TELL ME, IS IT JUST MY
IMAGINATION, OR OVER THE PAST
THREE TERMS HAS ANTHONY KENNEDY
NOT BECOME A MORE RELIABLY
CONSERVATIVE VOTE?
CONSERVATIVE VOTE? >> SO YOU KNOW "MORNING JOE" ON
THE SUPREME COURT IS WHERE ALL
HOPE GOES TO ZI WHEN IT COMES TO
THE FUTURE OF THE SUPREME COURT.
-- DIE.
-- DIE. THE BIG ISSUES THAT AMERICANS
CARE ABOUT, ABORTION, JUSTICE
KENNEDY BEING THE FIFTH VOTE TO
UPHOLD THE CORE OF ROE VERSUS
WADE.
WADE. AFFIRMATIVE ACTION IS PROBABLY
ON THE CHOPPING BLOCK RIGHT NOW.
WE HAVE AREAS OF CAMPAIGN
FINANCE LAW, WHERE THE
CONSERVATIVES COULD GO STILL
FURTHER IN LIMITING, ELIMINATING
RESTRICTIONS ON CONTRIBUTIONS.
JUSTICE KENNEDY BEING A CRITICAL
VOTE WHEN IT COMES TO SAME-SEX
MARRIAGE FOR EXAMPLE.
SO EVEN THOUGH THIS TERM HE
VOTED IN 14 DIFFERENT CASES WITH
THE CONSERVATIVES TO PROVIDE A
FIFTH VOTE, AND ZERO CASES WITH
THE LIBERALS, HE STILL OVER THE
COURSE OF YEARS, WAS ESSENTIAL
ON A NUMBER OF THESE ISSUES.
AND YOU COULD REALLY EXPECT ALL
OF THOSE TO HEAD IN THE OPPOSITE
DIRECTION.
DIRECTION. >> STEVE RATTNER?
>> SO, TOM, STEVE RATTNER, ON
ISSUES LIKE SAME-SEX MARRIAGE
AND ROE V. WADE WHICH HAVE
BECOME SO KIND OF
INSTITUTIONALIZED IN THE FABRIC
OF OUR SOCIETY AT THIS POINT, DO
YOU REALLY IMAGINE THAT EVEN IF
TRUMP PICKS WHAT AT LEAST SOME
OF US FEAR HE MIGHT DO, THAT IT
WOULD LITERALLY OVERTURN ROE V.
WADE OR OVERTURN SAME SEX
MARRIAGE, OR MORE CHIPPING AWAY
THE RIGHTS THAT GAYS AND WOMEN
GOT UNDER THOSE DECISIONS.
>> WHEN IT COMES TO GAY RIGHTS,
I WOULD SAY SAME-SEX IS
INSTITUTIONALIZE
INSTITUTIONALIZE INSTITUTIONALIZED.
INSTITUTIONALIZED. I BUT WHEN IT COMES TO
EMPLOYMENT DISCRIMINATION, A
CONSERVATIVE MAJORITY WOULD HEAD
BACK IN THE OPPOSITE DIRECTION,
IN EXPANDING RIGHTS FOR GAY
AMERICANS OR SAME-SEX COUPLES.
WHEN IT COMES IT ABORTION, I
THINK THAT JUDICIAL
CONSERVATIVES HAVE BEEN
RELATIVELY SAVVY IN SAYING WE
DON’T NEED TO SEE ROE VERSUS
WADE OVERRULED.
WADE OVERRULED. BUT THEY CAN STILL CUT IT BACK A
LOT AND SEND A SIGNAL TO THE
STATES THEY CAN ADOPT LONGER
WAITING PERIODS, MORE
RESTRICTIONS ON THE KIND OF
FACILITIES THAT CAN OFFER
ABORTION SERVICES SO AS A
PRACTICAL MATTER, I WOULD SAY
THE ABORTION RIGHT IS GOING TO
GET NARROWED PROBABLY A LOT.
>> TOM, LET’S TALK ABOUT THE
CHIEF JUSTICE JOHN ROBERTS, WHO
SHOCKED A LOT OF PEOPLE WHEN HE,
WHEN HE SIDED WITH THE WHITE
HOUSE ON THE AFFORDABLE CARE
ACT, ON OBAMACARE, HE DID SO, I
THINK MOST OBSERVERS BELIEVE,
BECAUSE HE BELIEVED IN THIS
INSTITUTION, HE SAW HIMSELF NOT
ONLY AS A CONSERVATIVE JURIST,
BUT ALSO AS THE PROTECTOR OF
INSTITUTIONS.
INSTITUTIONS. UNLIKE JUSTICE THOMAS, WHO
BELIEVES THAT YOU LOOK AT EVERY
CASE ANEW.
CASE ANEW. YOU HAVE JOHN ROBERTS LOOKING AT
THE INSTITUTION.
THE INSTITUTION. DO YOU SUSPECT THAT WE WILL SEE
A DIFFERENT JUSTICE ROBERTS?
NOT A MORE LIBERAL JUSTICE
ROBERTS, NOT EVEN A MORE
MODERATE JUSTICE ROBERTS, BUT A
JUSTICE ROBERTS THAT WILL SLOW
THE COURT DOWN IF FOR SOME
REASON HE’S STARING AT A 5-4
DECISION THAT WOULD OVERTURN ROE
V. WADE?
V. WADE? >> I WOULD THINK WHEN IT COMES
TO SOMETHING AS SIGNIFICANT AS
ROE, HE IS AS EXACTLY AS YOU
DESCRIBE KIND OF AN
INSTITUTIONALIST.
INSTITUTIONALIST. ON THE OTHER HAND, THERE ARE A
LOT OF THINGS THAT REMAIN ON THE
AGENDA OF JUDICIAL CONSERVATIVES
THAT HE IS WILLING TO TAKE
SIGNIFICANT STEPS ON, SO
YESTERDAY WE GOT THE UNION FEES
DECISION IN WHICH HE WAS PART OF
A FIVE-MEMBER MAJORITY
OVERTURNING A DECADES-LONG
PRECEDENT SAYING PUBLIC
EMPLOYEES UNION CAN COLLECT FEES
FROM NONMEMBERS TO ENGAGE IN
COLLECTIVE BARGAINING ON THEIR
BEHALF.
BEHALF. THAT’S ONE OF A DOZEN AREAS OF
THE LAW WHERE THE CHIEF JUST SIS
PART OF THIS MOVEMENT.
HE’S A REAGAN ADMINISTRATION,
GREW UP IN THAT CONTEXT, IS A
BELIEVER THAT THE COURT HAS BEEN
TOO FAR TO THE LEFT.
AND SO HE STILL HAS A WAY TO
TAKE THE COURT, I THINK.
>> HEIDI, LET’S TALK ABOUT
WHOEVER DONALD TRUMP NOMINATES.
OBVIOUSLY ROE IS GOING TO BE AT
THE CENTER OF THIS.
BECAUSE YOU CAN GO BACK 30, 40
YEARS AND IT WAS EITHER SANDRA
DAY O’CONNOR OR JUSTICE KENNEDY
THAT WAS CONTINUING TO PROTECT
ROE, AS A LEGAL PRECEDENT.
I’M WONDERING, WHAT HAVE YOU
HEARD?
HEARD? WHAT DO YOU EXPECT FROM LISA
MURKOWSKY, FROM SUSAN COLLINS?
FROM ANY OTHER REPUBLICANS THAT
MAY HOLD UP A NOMINATION, THAT
COULD OVERTURN ROE?
AND THEN WHAT DO WE EXPECT FROM
JOE MANCHIN ON THE OTHER SIDE,
AND HEIDI HEITKAMP AND SENATOR
DONLY FROM INDIANA.
ARE THEY GOING TO, BECAUSE THEY
WANT TO GET RE-ELECTED, ARE THEY
GOING TO BLINDLY FOLLOW WHEREVER
TRUMP’S NOMINEE TAKES THEM?
>> WELL THAT IS WHERE ALL OF THE
FOCUS IS GOING TO BE, JOE.
IF YOU LOOK AT THE DEMOCRATIC
MESSAGING THAT CAME OUT LAST
NIGHT, THEY MADE IT VERY CLEAR
THE TWO THINGS THAT THEY’RE
GOING TO FOCUS ON WITH ANY
NOMINEE ARE THE TWO THINGS THAT
TRUMP QUITE FRANKLY SAID WOULD
BE LITMUS TESTS WHICH ARE THE
OVERTURNING OF ROE AND ALSO THE
ACA.
ACA. HE’S ACTUALLY SAID THAT.
HE WOULD CHOOSE, HE SAID THAT IN
THE PAST HE WOULD CHOOSE JUSTICE
WHO IS SUPPORT THESE THINGS.
IN THE CONFIRMATION HEARINGS,
THEY WILL NAIL WHOEVER THE
NOMINEE IS, ON THESE POINTS.
NOW THE TWO WOMEN REPUBLICANS,
YES, THERE’S GOING TO BE A LOT
OF FOCUS ON THEM.
A LOT OF FOCUS ON THE DEMOCRATS.
BUT I THINK LISA MURKOWSKY AND
SUSAN COLLINS ARE GOING TO COME
UNDER SO MUCH PRESSURE BY
WOMEN’S HEALTH ADVOCATES AND
THEY HAVE SHOWN IN THE PAST, NOW
I KNOW YOU KNOW, JOHN McCAIN GOT
ALL OF THE ATTENTION FOR
TORPEDOING THE REPEAL OF THE
SKINNY REPEAL OBAMACARE REPEAL.
BUT WHO ELSE VOTED AGAINST IT?
LISA MURKOWSKY AND SUSAN
COLLINS.
COLLINS. AND THEY DID IT IN PART ON
CONCERN ABOUT WOMEN’S HEALTH
ISSUES.
ISSUES. SO THERE WILL BE A LOT OF
ATTENTION PAID TO THOSE TWO.
ONCE WE KNOW WHO THE NOMINEE IS.
AND THEN SECONDLY, EVEN BEFORE
THAT, I THINK WE’RE GOING TO
LOOK AT HEITKAMP, DONNELLY AND
MANCHIN TO SEE IF THERE ARE ANY
EARLY CRACKS.
EARLY CRACKS. LAST NIGHT YOU COULD SEE HOW
TRUMP IS STARTING TO GIN THIS
UP, GOING TO NORTH DAKOTA AND
SAYING HEIDI HEITKAMP SAYING SHE
WON’T VOTE FOR ANYBODY I
NOMINATE.
NOMINATE. EVEN THOUGH SHE VOTED FOR
GORSUCH.
GORSUCH. >> WHAT A TOUGH DECISION FOR
HER, FOR MANCHIN AND FOR
DONNELLY.
DONNELLY. AS THEY’RE STARING AT AN
ELECTION.
ELECTION. I KNOW DEMOCRATS WILL TRY TO
PUSH, PUSH THE VOTE BEYOND
NOVEMBER.
NOVEMBER. LOTS OF LUCK WITH THAT.
>> YEAH, I MEAN WE RISK LOOKING
AT THE COURT AS THOUGH IT’S AN
EXTENSION OF CONGRESS AND IT WAS
JUST A POLITICAL INSTITUTION,
AND IT’S NOT NECESSARILY.
I MEAN WE’RE TALKING ABOUT THE
EXTENT TO WHICH THE NEXT NOMINEE
IS GOING TO BE A DOCTRINAIRE
REPUBLICAN, DOWN THE LINE
PUSHING DONALD TRUMP’S AGENDA.
JUST THIS TERM WE HAD JUSTICE
GORSUCH REACHING ACROSS THE
AISLE --
AISLE -- >> I GREW UP WITH REPUBLICANS
PICKING SO-CALLED CONSERVATIVES
AND THEN SEEING THOSE SO-CALLED
CONSERVATIVES TURNING INTO
MODERATES.
MODERATES. OR, JUSTICE SOUTER.
>> THEY ALWAYS -- WE NEVER
FIGURED OUT, GROWING UP, JON
MEACHUM, WHY JUSTICES WOULD
ALWAYS GROW LEFT, BUT NEVER GROW
RIGHT.
RIGHT. BUT THEY WOULD ALWAYS GROW, THEY
WOULD ALWAYS BECOME MORE
MODERATE OR LIBERAL.
>> TO COMBINE WHAT NICK NIXON IN
’41, IT WAS LEFT WING MISSION
CREEP.
CREEP. >> I MEAN IT’S JUSTICE GORSUCH
JOINED THE LIBERALS ON THE COURT
IN A DEPORTATION CASE FOR
EXAMPLE, TURNING AGAINST DONALD
TRUMP.
TRUMP. THIS TERM YOU NOTED THAT THE
CHIEF JUSTICE ESSENTIALLY
REWROTE THE STATUTE FROM THE
BENCH IN ORDER TO PRESERVE THE
ACA AND WE HAD THIS CAKE BAKING
CASE, A PROMINENT CASE FOR
LIBERALS, A VALUES CASE THAT WAS
A 7-2 DECISION BECAUSE IT WAS
NARROWLY DEFINED AND THERE WERE
LEGAL PRINCIPLES AT PLAY THERE
THAT HAD NOTHING TO DO WITH
POLITICS THAT LED TO A VERY
CONSENSUS DECISION ON THE EXTENT
TO WHICH THIS INDIVIDUAL’S
RELIGIOUS FREEDOM HAD BEEN
VIOLATED.
VIOLATED. THERE ARE SOMETIMES RELIGIOUS
PRINCIPLES THAT I THINK
SUPERSEDE POLITICAL IMPULSES.
AND SO WE’RE ESSENTIALLY NOW
PREJUDGING A CONFIRMATION CASE
FROM A NOMINEE WHO HAS NOT BEEN
NAMED.
NAMED. PREJUDGING ARGUMENTS THAT HAVE
NOT BEEN MADE.
I THINK WE’RE PROBABLY GETTING
AHEAD OF THE ISSUE.
AND THE EXTENT TO WHICH BY THE
WAY ONE OF THESE INDIVIDUALS,
JUDGE AMY BARRETT BECAME A
HOUSEHOLD NAME AMONG SOCIAL
CONSERVATIVES WHEN SHE WAS
INTERROGATED BY DIANE FEINSTEIN
AND WAS TOLD THE DOGMA LIVES
WITHIN YOU TO THE EXTENT
REGARDING ABORTION, BECAUSE SHE
WAS A CATHOLIC, MIGHT HAVE BEEN
A PROBLEM FOR HER FROM THE
BENCH.
BENCH. SHE HAD BROUGHT CONCERNS ABOUT
DEATH PENALTY, TOO.
THE EXTENT TO WHICH WE LITIGATE
THESE LITMUS TESTS MIGHT
BACK-FIRE.
BACK-FIRE. >> AT THE SAME TIME WE KNOW, WE
KNEW THE TYPE OF JUSTICES BARACK
OBAMA WAS GOING TO SELECT.
AND WE KNOW THAT DONALD TRUMP IS
GOING TO FEDERALIST SOCIETY TO
FIND NOMINEES.
FIND NOMINEES. THEY’RE NOT GOING 0 GIVE US YOU
KNOW, THE, THEY’RE NOT GOING TO
GIVE US THE SUCCESSOR TO RUTH
BADER GINSBERG.
BADER GINSBERG. >> MOST LIKELY NOT.
THEY MIGHT ALSO GIVE YOU A
KENNEDY.
KENNEDY. >> WHAT TRUMP DID WAS SO
UNORTHODOX, BUT SAVVY DURING THE
CAMPAIGN, WAS TO PUT OUT THE
LIST AHEAD OF TIME.
HE MENTIONED IT YESTERDAY,
SUGGESTING THAT THIS WOULD
OFFSET CONCERNS THAT HE WAS AN
UNCONVENTIONAL CANDIDATE AND
UNORTHODOX POSITION, WOULD HE
PICK SOME SORT OF WACKY JUSTICE.
HE PUT OUT A LIST SAYING THESE
ARE CONSERVATIVES, THESE ARE
PEOPLE THAT REPUBLICANS CAN
SUPPORT.
SUPPORT. I HAVE A QUESTION FOR TOM.
WHEN HE SAID YESTERDAY THERE ARE
25 NAMES ON THIS LIST, IS THERE
ANY SUGGESTION THAT HE WOULD GO
OFF THAT LIST FOR THIS NEXT
PICK?
PICK? OR ARE THERE ANY NAMES ON THE
LIST THAT YOU THINK WOULD FIND
PARTICULAR RESISTANCE IN THE
SENATE?
SENATE? >> NO.
>> NO. I THINK THAT THE LIST IS KIND OF
FRAMEWORK WITHIN WHICH HE’S
GOING TO OPERATE.
BUT IN REALITY, THEY’RE RAILROAD
DOWN TO ABOUT FOUR OR FIVE
DIFFERENT NAMES.
DIFFERENT NAMES. THAT THEY ALREADY BEGUN TO FOCUS
ON.
ON. BOTH WITH RESPECT TO LEONARD
LEO, WHO IS COMING INTO THE
WHITE HOUSE, DON McGANN, THE
WHITE HOUSE COUNSEL.
SO I DON’T THINK THEY’RE GOING
TO HAVE TO GO THROUGH THE ENTIRE
LIST OF 25.
THEY’VE GOT NO NEED TO GO
ANYWHERE ELSE.
ANYWHERE ELSE. >> TOM GOLDSTEIN THANK YOU SO
MUCH FOR COMING IN THIS MORNING.
A LOT GOING ON.
>>> STILL AHEAD ON "MORNING
JOE" -- MORE ON THE SUPREME
COURT BATTLE WITH TWO MEMBERS OF
THE JUDICIARY COMMITTEE,
SENATORS DICK DURBIN AND RICHARD
BLUMENTHAL.
BLUMENTHAL. >>> PLUS PRESIDENT TRUMP URGED
REPUBLICANS IN ALL CAPS TO PASS
IMMIGRATION REFORM YESTERDAY.
>> QUITE INTENSE.
>>> HOURS LATER, IT FAILED
OVERWHELMINGLY THANKS TO THE
PRESIDENT’S OWN PARTY.