'The Rachel Maddow Show' for Monday, May 10, 2010
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Guest: Glenn Greenwald, Lawrence Lessig, Dahlia Lithwick, Brian
KEITH OLBERMANN, “COUNTDOWN” HOST: And now with her guest Glenn
Greenwald and more on the Kagan Supreme Court nomination—ladies and
gentlemen, here is Rachel Maddow.
Good evening, Rachel.
RACHEL MADDOW, HOST: Good evening, Keith. I would happily give you a
little time in my hour if you wanted to tell that joke.
OLBERMANN: Well, he‘s talking about—you sort of—with the
relationship with the sleeping with the voters, and naturally, if Mr. Brown
can‘t seal the deal, his possible successor could do that, and his possible
successor is, as I keep mentioning, David Milliband.
MADDOW: I was just about to say—and we‘re out of time.
Thank you, Keith. That was perfect in every way.
OLBERMANN: Bulging disk.
MADDOW: Thank you, Keith.
Thanks to you at home for staying with us for the next hour. Today
was a day too crowded with big news to fit into our one hour of
programming, but among the stuff we have figured out a way to find time to
cover are the continued failure of B.P. to stop its underwater oil volcano
in the Gulf, the incredible rates off the chart kookiness of state
electoral decisions and—and the passing of a legitimate hero of the 20th
century. That‘s all coming up over the course of this very packed hour.
But we begin with the Supreme Court and the entire 220-year-long
history of the Supreme Court of the United States. Exactly 111 people have
served in the capacity of Supreme Court justice; 108 of those 111 have been
men, 97.3 percent.
If President Obama‘s nomination to the court of Elena Kagan today is
confirmed by the Senate, that percentage will drop from 97.3 percent to
96.4 percent. USA! USA!
Here was the president today with his nominee announcing the second
Supreme Court nomination of his not yet 2-year-old presidency.
(BEGIN VIDEO CLIP)
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: While we can‘t presume
to replace Justice Stevens‘ wisdom or experience, I have selected a nominee
who I believe embodies that same excellence, independence, integrity and
passion for the law—and who can ultimately provide that same kind of
leadership on the court: our solicitor general and my friend, Elena Kagan.
ELENA KAGAN, SUPREME COURT NOMINEE: Thank you, Mr. President. I am
honored and I am humbled by this nomination and by the confidence you have
shown in me.
The court is an extraordinary institution in the work it does and in
the work it can do for the American people, by advancing the tenets of our
Constitution, by upholding the rule of law, and by enabling all Americans -
regardless of their background or their beliefs—to get a fair hearing
and an equal chance at justice.
(END VIDEO CLIP)
MADDOW: If she is confirmed by the Senate, Elena Kagan would join
Ruth Bader Ginsburg and Sonia Sotomayor as the third woman on the United
States Supreme Court. If she‘s confirmed, that means that three of the
four women to have ever served on the Supreme Court will all be serving at
the same time—if she‘s confirmed. Modern Supreme Court nomination-
confirmation battles are about as close to political blood sport as
As of today, as expected, let the games begin.
(BEGIN VIDEO CLIP)
SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER: It strikes me that if a
nominee does not have judicial experience, they should have substantial
litigation experience. Ms. Kagan has neither.
(END VIDEO CLIP)
MADDOW: Senate Republicans pouncing today on the fact that Elena
Kagan has never served as a judge. The last time someone who wasn‘t a
judge was nominated to be a Supreme Court justice was in 2005 when
President Bush nominated White House counsel Harriet Miers to fill the seat
of Justice Sandra Day O‘Connor. That nomination lasted all of 25 days,
whereupon Mr. Bush was forced to withdraw his pick for lack of political
The relevant comparison between Harriet Miers and Elena Kagan is not
actually about judicial qualifications. There really are no serious
questions about whether Elena Kagan is qualified for the Supreme Court.
Harriet Miers had essentially been George Bush‘s lawyer and she‘d been
White House counsel for a hot minute and that‘s it.
Elena Kagan, on the other hand, is the current solicitor general of
the United States—that‘s the person who argues the government‘s cases in
front of the Supreme Court. She is the former dean of Harvard law school.
She is a former clerk to the Supreme Court. She has a nationwide coast-to-
coast sterling legal reputation. She has been a long time mainstay of
Supreme Court speculation.
The invocation of Harriet Miers‘ name right now—again, let me
repeat, is not because of the qualifications of these two nominees. It‘s
because of this—it‘s because the thing that killed Harriet Miers‘
nomination was resistance from the base of the president‘s own party—
criticism that the president at the time, George W. Bush, had not chosen
someone conservative enough, someone with enough of an overt conservative
record to settle conservatives‘ doubts that she would be a solidly right
(BEGIN VIDEO CLIPS)
KELLY O‘DONNELL, NBC NEWS (voice-over): Advisers say Senate
Republicans warned the White House they could not guarantee enough votes
for Miers. Even from the president‘s own party.
UNIDENTIFIED MALE: I hope we can all kind of step back, the president
SEN. MIKE DEWINE ®, OHIO: I think, the president, you know, will go
back to his original criteria, which is to appoint a conservative to the
RUSH LIMBAUGH,RADIO TALK SHOW HOST: The idea that we now have to roll
the dice and wait a number of years to find out if this one works out when
it isn‘t necessary is I guess the big bugaboo with me.
UNIDENTIFIED MALE: It is baffling the president would have passed
over that group of people to pick someone who is such an uncertain
(END VIDEO CLIPS)
MADDOW: Such an uncertain quantity. And so, the Harriet Miers
nomination was withdrawn—not because of liberals but because of
conservatives. And conservatives were then delighted that the very on-the-
record, doctrinaire conservative, Samuel Alito, was nominated for that seat
There is no mirror between right and left in this country there.
There is no liberal equivalent to the conservative movement‘s level of
organization and funding and influence on party politics. But in
considering a replacement for the justice who was the court‘s liberal
anchor with a Democratic president, with a 59-seat Democratic majority in
the United States Senate, will liberals—with whatever organization they
can muster—be satisfied with a nominee whose credentials as a liberal
aren‘t so much evident in her record as they are expected to be a matter of
In a moment, we‘ll hear from a Lawrence Lessig, a long-time friend of
Elena Kagan, a hugely respected legal scholar in his own right and strong
supporter of Ms. Kagan‘s nomination.
But, first, we will hear from Salon.com columnist and constitutional
lawyer Glenn Greenwald who has been a strong critic of Elena Kagan‘s
nomination. Among before this nomination was announced, Mr. Greenwald
wrote a piece on Salon.com called, “The Case Against Elena Kagan,” which
has cast a glow over much of the discussion of this nomination in its early
Glenn, thank you very much for coming on the show tonight. It‘s good
GLENN GREENWALD, SALON.COM: Good to see you, Rachel.
MADDOW: Is your main concern with Elena Kagan‘s nomination that there
is not enough in her record to satisfy you that she would be a liberal
voice on the court? Or are there overt things that are in her record that
you think are illiberal?
GREENWALD: It‘s both. It‘s certainly more the former than the
latter. And I wouldn‘t even put it as so much as there‘s not enough in her
record for us to know that she‘d be a liberal justice. What the concern is
that she‘s actually a complete blank slate. She‘s somebody who has managed
over the course of the last 20 years to avoid taking a position or
expressing an opinion on virtually every single substantial political and
And so, for any rational citizen to want to assess the appropriateness
of putting her on the court to replace Justice Stevens, there‘s really
absolutely nothing that a person can look to to know what kind of judge she
There are troubling things in her record, things she said that ought
to be questioned about her belief in executive power, her praise for Bush
Justice Department lawyers who sanctioned the illegal warrantless
eavesdropping program, the utter lack of diversity of her hiring record at
Harvard law school. And these things need to be explored.
But the real concern is: she has purposely avoided expressing any
opinion whatsoever over the last 20 years in the way that makes it
impossible for any progressive in good faith to say that they support her
MADDOW: I want to ask you about some of those overt things in the
record that you just mentioned. But first, Glenn, when you wrote your
critique of Kagan for “Salon” a month ago, one piece of her record hadn‘t
come to light, that was a letter that she wrote in 2005 with three other
law school deans, that was opposing a Lindsey Graham proposal about
Guantanamo in the courts. And that letter did strongly criticize the Bush
administration‘s expansion of executive power. That‘s just come out in the
last few days.
Does that letter—the existence of that letter—leaven your
concerns about her at all?
GREENWALD: I think that‘s a positive sign. I mean, there are little
snippets that you can sort of glean from her past that are both concerning
and encouraging. The fact that she condemned John Yoo‘s memos authority of
the eight years into the Bush administration, the letter that you mentioned
condemning the abolition of habeas corpus as a political matter—these
are things that are encouraging. There are other things that are
But none of that really gives us a clue as to how she approaches the
Constitution. What her theory of the law is or of judging—which is
really what you want to know before you put somebody on the Supreme Court,
especially somebody replacing Justice Stevens could easily move the court
to the right if they‘re not the kind of judge Justice Stevens is.
So, yes, those are good pieces of evidence, but they tell us actually
very little about the kind of judge she would be.
MADDOW: Glenn, one of the things you have written about and I think
that other people from the left have criticized about Elena Kagan‘s record
is a discussion that she had during her solicitor general confirmation
hearing with Lindsey Graham and they were talking about indefinite
detention, as you mentioned, the government‘s right to pick up anybody,
anywhere in the world, hold them indefinitely without trial. She
essentially agreed with Senator Graham when he was expressing his own views
Is it possible that in that discussion, she was essentially saying
what her view was of current law, not necessarily expressing her opinion
that she thought it was—that that law was constitutional or that she
thought it was good policy?
GREENWALD: No, that‘s what Kagan defenders have said about that
exchange, and it‘s interesting because “The New York Times” described that
confirmation hearing as—when she was confirmed as solicitor general,
they said Republican senators lavished her with every bit as much praise as
Democratic senators did, and the reason is, is because of the types of
colloquies that you just referenced.
When she was talking to Senator Graham, part of what she was doing was
stating the current state of the law. But she went much beyond that. She
actually said that the entire world is a battlefield in the war on terror -
not just the places where there‘s armed conflict or where Congress has
authorized use of force. And it‘s not just people engaging in hostilities
against the United States, but even people much more distantly connected to
terrorists, people who finance terrorism or who give material support, who
we can hold as enemy combatants as well.
That‘s nothing that the Supreme Court has said. That is not the state
of the law. That is something that she said when answering Lindsey Graham
that she believed to be true. And that really is a core precept of the
Bush/Cheney approach to terrorism that served as an anchor for so much of
the radicalism of the last decade. Again, that is not a perfect insight
into what she thinks. But it‘s something that is a little snippet that
certainly ought to be of concern to people who oppose the Bush approach to
MADDOW: Salon.com columnist, former constitutional lawyer himself,
Glenn Greenwald, whose criticism early on of the potential and now current
Elena Kagan nomination has been a real focus for people in terms of sorting
out her record and what‘s worthy of discussion about it.
Glenn, thank you very much, as always, for your insight. It‘s good to
have you on the show.
GREENWALD: Thanks, Rachel.
MADDOW: And then there is the case in favor of Elena Kagan for the
Supreme Court. Harvard law professor, Lawrence Lessig, worked alongside
Elena Kagan for years. He has known her for nearly 20 years. He will join
us next to make the case for her nomination.
And there‘s an update today on the volcano of oil that is spewing
underwater off the Gulf Coast. In short, it is getting more disastrous and
the people trying to fix it appear now to be just making it up as they go
along. Disturbing details—ahead.
Please stay tuned.
MADDOW: One thing about low-hanging fruit, rotten or not, someone‘s
bound to pick it. One example of that today was the opposition proclaiming
that Elena Kagan doesn‘t have enough experience to judge pies at a county
fair, let alone Supreme Court cases.
Senator John Cornyn, Republican of Texas, issued this statement today,
quote, “Most Americans believe that prior judicial experience is a
necessary credential for a Supreme Court justice.” And we‘re talking real
judicial experience here, a robe that‘s worn through at the elbows, a gavel
that‘s held together by duct tape.
Unless you‘re picked by a Republican president—like Supreme Court
Justice Clarence Thomas who had been a judge for just over a year when the
first President Bush nominated him. Or Chief Justice John Roberts who had
barely been a judge two years when the second President Bush first picked
him—eventually, he‘s the nominee for chief justice.
The chief justice who Mr. Roberts replaced was Chief Justice William
Rehnquist, who‘d never been a judge at all. Rehnquist was only assistant
attorney general when President Nixon chose him for the court.
Also consider Chief Justice Earl Warren, you know, Earl Warren. Brown
v. Board of education guy. He‘d only been attorney general and governor of
California before President Eisenhower nominated him.
In the history of the U.S. Supreme Court, 40 justices never served as
judges before being nominated to the court. Elena Kagan would be the 41st.
This “Supreme Court nominees must have tons of judicial experience”
thing is a whole new idea they‘ve only decided to apply to her. Don‘t
MADDOW: One of the criticisms from the left that has been leveled at
President Obama‘s new Supreme Court nominee, Elena Kagan, is that she‘s not
as liberal as the justice she‘d be replacing, John Paul Stevens; that her
ascendants to the court would therefore had the affect of moving the court
to the right.
In response to that concern today, a senior White House official told
us this today. Quote, “The president believes he nominated someone with
the intellectual heft and energy to compete with Justices Roberts and
Scalia—someone who has the ability not to simply write the eloquent
dissent of four but to put together a coalition of five for that point of
view. Someone who is more outward ideological would likely not have the
same capacity to build the majorities we want to see.” Again, that
statement to us today from a senior White House official about Elena
In response to that, the liberal argument for Elena Kagan‘s nomination
is essentially of two parts at this point. First, that senior
administration official‘s argument to us that she‘ll be persuasive to other
justices, that she‘ll be good at scaring up a majority of five votes for
But second, people who know Elena Kagan are assuring the nation now
that her positions—that she‘ll be so persuasive about—are liberal
positions, even if there isn‘t a dense record of those positions for us all
Joining us now is Harvard law professor, Lawrence Lessig, who has
known Elena Kagan for 20 years and wrote in support of her nomination at
“Huffington Post” today.
Professor Lessig, thank you very much for your time today.
LAWRENCE LESSIG, HARVARD LAW PROFESSOR: Great to be here, Rachel.
MADDOW: Why do you think that Elena Kagan would be good at persuading
other justices to her point of view, that she‘d be good at forging
LESSIG: Well, I think the first important point is to emphasize what
the White House said today. Unlike the examples of President Bush
appointing very strong conservatives, we‘re not appointing the fifth
justice. We‘re appointing the fourth justice. And that that means is this
justice has got to have the capacity to persuade the other side, to pull
them on to the side of progressive causes.
Now, I and many others—everybody I think who has watched Elena work
over the past 20 years, have seen this power more than any other right in
the center of what she can do. And that‘s because she has an enormously
powerful intellect and integrity, as well as the ability to express a
strength and respect to the other side.
I was at the Harvard Law School until 2000 when he left to go to
Stanford. And she persuaded me to come back and the place I came back to
was a radically different institution. I asked what had happened in the
prior nine years, and the answer was Elena Kagan. And that is I think a
measure of her capacity, which I‘ve seen again and again in context where
I‘ve seen her engage with people she disagrees with.
MADDOW: Part of the lack of an overt record that some people have
expressed concerns about, particularly from the left, is that—is about
the fact that Ms. Kagan hasn‘t chosen to be a real legal activist against
some of the more gymnastic constitutional exercises of the Bush years—to
put it charitably. She didn‘t do that while she was dean at Harvard.
Could she have done that? Should she have done that?
LESSIG: Well, I think—first, we need to put this in context. You
know, I love Glenn Greenwald, I repeat his words all the time when I give
lectures, as an activist legal scholar.
But the hyperbole in what Glenn is saying here is really something we
have to check. He said right at the top of your show that there‘s a
complete blank slate here. That every substantial legal question she has
That is just absurd. She has written three extraordinarily important
pieces mapping out a theory of the First Amendment. That was the first
work she did as a scholar at the University of Chicago. And when she came
to Harvard in 2000, she wrote what is, I think, one of the most important
articles about presidential administration in the last 30 years.
Now, that‘s two of maybe five central areas of what a justice has to
think about that she already has what I think is an extraordinarily
important theory. So, the idea that somehow she‘s been sitting zephyr-like
in a way that tries to hide what she‘s saying is just silly. What she
hasn‘t done is what frankly people like I have done. What she hasn‘t done
is gone out there and blog and Twitter and been on the road talking about
every single issue.
And, frankly, I‘m not sure she made the wrong call because what she
did by refocusing her energy when she came back to the Harvard Law School
is to build an extraordinary institution and define a set of values which I
think tell us an extraordinary amount about who this person would be as a
Supreme Court justice.
MADDOW: Both the issue of the—I guess, the sparseness or as the
case you make, the lack of sparseness of her record, that‘s one issue.
Also, people have been debating what is in her record. One specific
criticism that has been made of Ms. Kagan that I just discussed with Glenn
concerns her discussion with Senator Lindsey Graham during her confirmation
for solicitor general. She essentially agreed with him about the
government‘s power to indefinitely detain people without trial no matter
where in the world they were arrested.
Is that a cause of concern to you? Do you feel that‘s been
LESSIG: I do. And I believe, as you‘ve said in your question to
Glenn and as Glenn summarized it in the end—this is a little snippet
that has been taken out of context. When I heard it, I understand her to
be telling us what she expected the Supreme Court‘s view of the law was.
And it would be radically inconsistent with everything that she had said
before. Both the things you pointed to and the work that she had written
when she wrote this piece for the “Harvard Law Review.”
I mean, this is another area where Glenn has just flatly misstated the
case. In his piece on “Democracy Now” on April 13th, he said that in that
article she talked about the power of the president to indefinitely detain
anyone around the world. Now, that article was written before George Bush,
before 9/11 and before George Bush articulated anything about this power.
It has nothing to do with the power of the president to detain anybody.
The power of the unitary executive that George Bush articulated is kind of
uber-power of unitary executive was nowhere even hinted at in Elena‘s
Yet, Glenn has repeatedly assert that‘d she is George Bush and that is
just flatly wrong. What she said before Lindsey Graham was, in my
understanding, a characterization of her understanding of the law. She was
not as a solicitor general telling the world how she wants to change the
law, that‘s not her job. Her job is to show that she can advance the
interest of the government as the government sees it, both the president
and Congress, and she‘s done that job extraordinarily well.
MADDOW: Professor Lawrence Lessig of Harvard Law School, I have to
tell you, the Supreme Court nomination process, in my view, has become a
process where nominees try to prove how conservative they are, either small
“C” or large “C,” depending on whose president.
Talking with you and Glenn tonight just makes me really wish that it
was a big fight amongst liberals and centrists. I think it could be
really, really interesting to get in to all this stuff in great detail. I
really thank you for your time tonight.
LESSIG: I appreciate it. Thanks for having me.
OK. The great Dahlia Lithwick of “Slate” magazine is on deck to join
us. She‘s one of our semi-regular guests on this program, for whom we get
fan mail here at the office. I‘m just saying.
And the great state of Maine, home to the two perceived to be moderate
Republican senators still left in existence just saw its own Republican
Party take a running, naked, shivering leap right out of the mainstream.
Montana Governor Brian Schweitzer will join us to talk about the
spectacularly entertaining politics going on in the states right now.
Please stay tuned.
(BEGIN VIDEO CLIP)
OBAMA: Elena is respected and admired not just for her intellect and
record of achievement, but also for her temperament, her openness to a
broad array of viewpoints, her habit—to borrow a phrase from Justice
Stevens—of understanding before disagreeing, her fair-mindedness and
skill has a consensus-builder.
(END VIDEO CLIP)
MADDOW: If you ask her supporters, one of Elena Kagan‘s greatest
assets as a nominee to serve on the Supreme Court is her unique ability to
both listen to and to appeal to conservatives even though she has not
considered herself to be a conservative.
Elena Kagan, according to the prevailing common wisdom, is the kind of
nominee who will be able to build unexpected coalitions on the Supreme
through her openness, her balance and here estimable powers of persuasion.
Track record check? Well, acting as the government‘s lawyer, Elena
Kagan has appeared before the Supreme Court a total of six times. There‘s
audiotape of each of those appearances. So check it out.
Here‘s what happened when Elena Kagan argued the government‘s case in
Citizens United versus Federal Election Commission last year. Spoiler
alert here, she lost the case. You might remember it‘s the one that gave
corporations the right to spend limitlessly in U.S. elections. Check out
this brief back-and-forth.
(BEGIN AUDIO CLIP)
JOHN G. ROBERTS, CHIEF JUSTICE, UNITED STATES SUPREME COURT: It seems
to your shareholder protection rationale, isn‘t it extraordinarily
paternalistic for the government to take the position that shareholders are
too stupid to keep track of what their corporations are doing and can‘t
sell their shares or object in the corporate context if they don‘t like it?
ELENA KAGAN, BARACK OBAMA‘S SUPREME COURT JUSTICE NOMINEE: I don‘t
think so, Mr. Chief Justice. I mean, I for one can‘t keep track of what my
where I hold -
ROBERTS: Well, you have a busy job. You can‘t expect everybody to do
KAGAN: It‘s not that I have a busy job.
ROBERTS: But it is extraordinary. I mean, the idea, and as I
understand the rationale, is we the government, Big Brother, has to protect
shareholders from themselves. They might give money. They might buy
shares in a corporation and they don‘t know that the corporation is taking
out radio ads. The government has to keep an eye on their interest.
KAGAN: I appreciate that. It‘s not that I have a busy job, it‘s that
I, like most Americans, own shares through mutual funds. You don‘t know
where your mutual funds are investing, so you don‘t know where you‘re
ROBERTS: So it is. I mean, I understand. So it is a paternalistic
interest. We, the government, have to protect you naive shareholders.
(END VIDEO CLIP)
MADDOW: If you didn‘t know who the two people speaking were in that
clip, do you think you could tell who was the lawyer and who was the judge?
Of course the male voice is Chief Justice John Roberts. The female voice
is the United States Solicitor General, Elena Kagan, the nominee to be the
next Supreme Court justice.
She was acting then in her capacity as the government‘s lawyer.
But what you‘ve just heard, that exchange with Chief Justice Roberts is not
just an example of the vague kind of situation in which Elena Kagan would
need to be persuasive as a Supreme Court justice. That was the actual guy
she would be trying to persuade every day for the rest of her life in this
And the funny thing is Chief Justice Roberts didn‘t necessarily
sound all that persuaded in that back-and-forth. To the extent the court
matters in terms of what American policy is, the leaders on the court
matter in terms of defining what American policy is.
It‘s not just the chief justice. It‘s the center of gravity on
the court, who affects it, who‘s getting their way among those nine
justices. Based on the evidence that exists, it is maybe worth being all
rational and fact-based about it and wondering if the common wisdom that
Solicitor General Elena Kagan would be a great consensus builder might be
based on a foundation that‘s a little thin.
Joining us now is Dahlia Lithwick, senior editor and legal
correspondent for “Slate.com.” Dahlia, thanks very much for joining us
DAHLIA LITHWICK, SENIOR EDITOR AND LEGAL CORRESPONDENT, “SLATE.COM”:
Thanks for having me.
MADDOW: What does Elena Kagan‘s time arguing in front of the Supreme
Court as solicitor general tell us about what she‘d be like as a judge?
LITHWICK: I think it tells us exactly what Obama told us today when
he introduced her, Rachel, which is this is a common person. Listen to her
talking about her confusion with her mutual funds - you know, Ted Olson
doesn‘t confess to having confusion about how his investments go, so she‘s
just a regular person. You know, she‘s just as confused as the rest of us.
It also I think goes to the point that you made, which is, it‘s
never clear watching Chief Justice John Roberts that he‘s ever quite gotten
over his days as one of the adept point oral advocates in the country.
You still often get the sense and that clip really captured it,
that he just assumed, you know, vault the bench and push the person from
behind the lectern and argue the case himself.
She‘s very different. If you heard anything there, it‘s
something that sounds like judicial temperament. I mean, A, she couldn‘t
really get a word in edgewise but there‘s this attempt to say, “No, it‘s
not this. It‘s not this. It‘s somewhere in the middle. Let me help you
I mean, this is classic Kagan and this is the thing I think Obama
was trying to say would be a real asset at the court, that she‘d be able to
say, “No, no, no, no, far right wing justices. You‘re misapprehending the
situation. Let me tweak it a little and make it more palatable to you.”
And I think the other thing you may have heard is, I don‘t think
that John Roberts looked all that persuaded and the real question that I
have is whether this strategy or this thought that maybe she has some weird
Svengali-like influence over, you know, the conservative jurists on the
court doesn‘t really miss the sense that I think we have four pretty
locked-in, very strong, very, very coherent ideological views on the right.
I don‘t see them all that open to persuasion.
MADDOW: In terms of the overall style with which justices conduct
themselves during oral arguments, one of the things that you pointed out
that I think is very interesting to those of us who haven‘t been in there
and seen the justices in action, is the prospect that justices are actually
more stylistically aggressive with lawyers who they have more respect for.
They‘re willing to interject more, to be interrupting - to be
more interrupting with attorneys who they actually feel like do have a
great command of the law. Is it possible that that explains some of the
real thorny back-and-forth that we‘ve seen?
LITHWICK: Certainly, it could. And let‘s be really careful to say,
we‘re talking in equal six. We‘re talking six oral arguments before the
court. And I think it‘s very - really not wise to jump to big conclusions
especially since that first Citizens United argument was her first argument
So she‘s learning on the job. And it‘s clear I think that the
justices are very comfortable with her. She is, as you heard, very
conversational, very collegial with them.
So I think there is at least some sense that, look, they respect
her. You can hear it in Scalia. He tweaks her sometimes at argument.
There‘s a sort of collegial teasing going on.
But as I said, I don‘t know that that goes to this larger
question of whether she‘s having a huge influence over them on the
jurisprudential front. And you know, it all comes down to Anthony Kennedy
at the center there.
And I think the suggestion that she‘s going to have the ability
to really shape and change Kennedy‘s mind the way John Paul Stevens did, I
think again, is a bit of an overstatement of a very complicated
relationship between Stevens and Kennedy.
One last brief question for you, Dahlia. One thing that Glenn raised
earlier when I was speaking with him is the controversy over Elena Kagan‘s
hiring practices at Harvard. Thirty-two tenure-track hires I‘m told - 25
white men, six white women, one Asian-American woman - a very un-diverse
hiring record for somebody who is being billed as a closet progressive.
Does that play into her confirmability? Does that arise as a
major political issue for her confirmation?
LITHWICK: Oh, I think the White House - it‘s their dream that this
will arise, that she‘ll get to say, what? So I‘m not for flagrant
application of labels and affirmative action?
You know, I think that they would love to have this arise as an
issue. I don‘t suspect it‘s going to be a major issue. I think it is
something that came up over the course of last week and has raised some
But my sense is the big, big theme here is going to be her lack
of judicial experience, and what that means. I think this is a little bit
of a footnote.
MADDOW: Dahlia Lithwick, senior editor and legal correspondent for
“Slate.com,” thanks for joining us tonight. I have a feeling we‘ll be
having a few more of these conversations.
LITHWICK: Thanks, Rachel.
MADDOW: One of the nation‘s single most entertaining and interesting
governors ever is due to join us here in studio in a moment, Gov. Brian
Schweitzer of Montana. And just about everybody had a better weekend than
the Gulf of Mexico did. BP is doing its best and its best hasn‘t been
nearly, nearly good enough. Updates ahead.
MADDOW: Since before anyone was nominated to the Supreme Court seat,
conservative activists have been plotting how to turn an expected
nomination to Republican political advantage.
According to a conference call from April 22nd obtained by
“Talking Points Memo” today, conservative activist Curt Levey of the
Committee for Justice was already schooling the Republican National
Committee last month to delay a vote on the nominee, whoever it was.
He said, quote, “The closer we could get it to the election,
frankly, the better. It would be great if we could push it past the August
recess because that forces the red and purple state Democrats to have to go
home and face their constituents.”
And it is back at home with the constituents in every state and
all the individual states that the truly entertaining stuff in American
politics right now is afoot. In Utah, for example, Republican incumbent
Senator Bob Bennett lost his party‘s nomination, thanks to tea party
opposition this weekend.
In Hawaii, the Democratic Congressional Campaign Committee,
citing infighting, stopped investing in a special election there to replace
Democratic Congressman Neil Abercrombie.
A Republican candidate is currently leading in the polls there,
even though President Obama won that district with something like 70
percent of the vote. And then, there‘s Maine, a northeast bastion of
moderate Republicans, right?
Senators Olympia Snowe and Susan Collins of Maine, for example,
voted for Elena Kagan‘s nomination for solicitor general. They have
promised her a fair hearing for the Supreme Court.
But consider what they have got to contend with at home. Just
one day after both of those senators addressed the main Republican Party
gubernatorial convention in Maine. The convention specifically advocated a
reform act for term limits that, if enacted, would leave both the incumbent
senators from that state out of a job.
Members decided to throw out the party platform prepared by the
committee members, in favor of an amendment created by activists with
affiliations to the tea party movement. Their new platform, among other
things, calls for a mandate that state sovereignty be regained and retained
much of where it‘s gone.
It asserts Maine‘s 10th Amendment sovereignty rights. It
prohibits any public funding of ACORN, OK. It rejects the U.N. treaty on
rights of the child which only the United States and Somalia have failed to
It asserts the principle that freedom of religion does not mean
freedom from religion. It freezes current stimulus funds. It prohibits
any further stimulus bills and clarifies that health care is not a right,
it is a service.
It also advocates the elimination of the Federal Reserve and the
elimination of the Department of Education, because, hey, who needs them?
It also advocates limiting any senator to only two terms. Both Senators
Snowe and Collins are currently in their third terms.
Joining us now for the interview is the Democratic Governor of
Montana, Brian Schweitzer. Gov. Schweitzer, it‘s great to have you here.
GOV. BRIAN SCHWEITZER (D-MT): It‘s good to be back.
MADDOW: What are you doing in New York City?
SCHWEITZER: Staying here for a very short period of time.
MADDOW: I understand. What is going on in the states in politics
right now that people don‘t get in Washington? Is there a different
dynamic afoot in the states?
SCHWEITZER: Not really. The loud voices are being heard right now.
But less than one percent of America will ever go to a platform committee
SCHWEITZER: So these people show up in Maine and they say, oh, we‘re
going to change everything. In fact, we‘re going to have a platform that
is blatantly unconstitutional. They can‘t tell these two senators that
they can no longer serve.
Now, that‘s a matter of the constitution and that‘s not something
that Maine is going to be able to do all by themselves. So loud voices are
shouting very loudly, but wait until you get to the general election.
People will vote for the moderates. They‘re not going to vote for extremes
on the right and left.
MADDOW: So your counsel to Bob Bennett when he woke up after having
been essentially sort of disowned by his own party this weekend is -
SCHWEITZER: They have a system.
SCHWEITZER: 3,500 people get to decide for one million people in
SCHWEITZER: He‘s been around for a long time out there. If he didn‘t
like that system, he probably should have changed it. He probably can
still get in the primary but he has to run as an independent or write-in or
something crazy. I don‘t know what that situation is. But that‘s Utah‘s
problem. They are a single-party state.
MADDOW: And you think though that the overall conventional wisdom
that the extremes are pushing all the moderates out of the parties, that
there‘s no room to be a moderate in either party anymore, especially in the
Republican Party. Do you think that‘s just not true?
SCHWEITZER: Big talk in New York and Washington, D.C.
SCHWEITZER: But in the countryside, they‘re still the same people who
are going to show up and vote in the same elections as they‘ve been voting
in. These loud voices that have been showing up with tea bags and saying
they want to overthrow this, that and something else.
A lot of Republicans are embarrassed by them and a lot of
Democrats aren‘t listening to them. And a lot of independents are going
about their business, showing up for work, educating their kids and doing a
MADDOW: What do you think - in terms of - as a Democratic governor in
the great state of Montana, somebody who‘s been remarkably electorally
successful there, in counseling other Democrats around the country, even
other Republicans, to ignore the sort of D.C., Washington fetish stories,
what would you tell people to focus on in terms of where you think people‘s
real concerns are or where the real pulse is for politics right now?
SCHWEITZER: If you‘re elected to deliver government, deliver
government. What people don‘t like is incompetence. If you are elected in
a position - for example, if you‘re governor, you educate, you medicate,
Your jobs is to keep bad people in prison, good teachers in front
of eager students and take care of single moms have disabled children. If
you do a good job at that, whether you‘re a Republican or a Democrat,
you‘ll be re-elected or you‘ll be elected.
MADDOW: The recession - the perception that government is inherently
wasteful has been driving I think a lot of populist anger in the country.
You obviously have a common sense - government needs to work. These -
there are few limited things and do them well sort of message.
Do you think there is resistance to that overall message that
government does have a role? Do you think that there is a sort of an
inherently anti-government bias in politics now?
SCHWEITZER: The tea party people get up in the morning and they make
phone calls to each other that they‘re going to go to a rally. And they
use a subsidized telephone system. Then they drive down a road that was
built by the government that is protected by government workers called
They get to a rally and they carry their signs and they are
protected by the firemen and the policemen who are in that town. And then
they eagerly drive home and say, “It was a success. We‘re against the
So you have got to have government that works. In Montana, we‘re
one of the two states that have a surplus. We have $400 million in the
bank. But I‘m still challenging expenses.
I‘m not cutting government. We‘re challenging expenses of
government, the same way a small businesses and some big businesses all
over the country are. It‘s not a sin to be frugal. It‘s not a sin to
But it is a sin to cut back on education for our most valuable
resource. And when we‘re expected to keep people in prison, we should keep
them in prison. Don‘t turn them loose because, well, you‘ve got a bad
budget. That‘s government that doesn‘t work.
MADDOW: Does public service and politics - do they have a bad name
right now? Would you encourage people to go into public service to go into
politics, or do you feel like it‘s a business that‘s sort of inherently
slimy at this point?
SCHWEITZER: You ought to have a thick skin.
SCHWEITZER: Because even if you‘re not corrupt, there will be people
who say you are corrupt. And most of the people who are in politics -
they‘re not corrupt. If you want to, you know, make a lot of money, go
If you are in politics, you inherently don‘t make a lot of money.
That‘s the way the game is played. So those who are looking to enrich
themselves personally, they‘ll probably go to Wall Street.
MADDOW: Or at this point - at this point I‘m starting to think
disaster cleanup is the way to go, really. It‘s the only surefire betting
business anymore. Gov. Schweitzer of Montana, it‘s always such a pleasure
to talk to you, sir. Thanks for coming by.
SCHWEITZER: Good to be back.
MADDOW: Good to see you.
SCHWEITZER: We‘ll see you.
MADDOW: Coming up on “COUNTDOWN,” Keith asks Nixon White House
counsel John Dean why the Obama administration wants to maybe alter the
Miranda rules for terrorism suspects.
But first, on this show, the utter failure to contain the massive
and growing oil slick in the Gulf of Mexico. We‘ve got details on that.
We‘ll be right back.
MADDOW: We had quite a time at the staff meeting this afternoon,
running through all the things that BP stands for - broken pipe, big
problems, brutal prospects, biblical proportions. Coming up, our
conclusion on a day when the Gulf of Mexico got even oilier. Please stay
MADDOW: So Plan A failed. That four-story containment dome that was
supposed to trap oil as it comes spewing out of the cracked pipes in the
Gulf of Mexico - that was supposed to contain the reported 5,000 barrels of
oil a day. That didn‘t work.
The water trapped inside the dome actually made it float and ice-
like crystals formed inside, plugging it up. It turns out something that
functions in a couple of hundred feet of water might not work at nearly a
mile down in a cold, highly pressurized environment.
Who knew? Apparently not BP. So now, it‘s on to Plan B. That‘s
a smaller containment dome, and they‘re calling it a top hat. It‘s only
five feet tall by four feet wide. It‘s supposed to do a better job of
staying put over the gusher.
Fingers crossed for Plan B. We‘ll know about that in about three
days. If that doesn‘t work, Plan C is something they‘re hopefully calling
a junk shot. It involves spraying bits of rubber golf balls and knotted
rope into the wellhead, followed by a nice shot of cement to plug it up.
These options just sound better and better, don‘t they? Plan C,
the junk one, could happen next week. Then there‘s the relief well, BP‘s
last best hope. BP says it‘s been drilling for about a week now and is
actually a bit ahead of schedule.
But of course, they don‘t anticipate being done in less than
three months. Meanwhile, the gusher - like options A, B and C, they‘ve
also never tried doing what they‘re doing there with that relief well at
such a great depth before.
Meanwhile the oil slick is now moving west of the Mississippi
delta, heading been towards fisheries filled with shrimp and oysters and
crabs and crayfish. Well, to the east, they‘re finding these on Alabama‘s
Dauphin Island - tar balls.
One piece of good news, the first two oiled birds found after the
spill have been cleaned up and released. They were relocated today to a
wildlife refuge in Florida on the Atlantic Ocean, where the oil hasn‘t hit
yet. Two birds cleaned up. That‘s the sum total of the good news. Drill,
MADDOW: The great Lena Horne died last night in New York at the age
of 92. She was famous and beloved as a singer, an actor and a dancer. But
the thing that made her more than that, the thing that made her a legend
was the grace she maintained while overcoming barriers and unapologetically
emerging as the star that she became.
Lena Horne was the first black performer to sign a long-term deal
with a major Hollywood studio, MGM. But early in her career, she got no
leading roles, because her scenes had to be removed from movie prints when
they played in states that wouldn‘t allow showing films with black
But while she fought her fight beyond the camera‘s reach, when
the call came for action, Lena Horne always made it look glamorously easy,
even though it never was. Time and again, throughout her career as an
entertainer and as a civil rights activist, society tried to put Lena Horne
in a box and she had to break out of it.
This caused some bruises along the way. Some African-Americans
accused Lena Horne of trying to pass in a white world with her light
complexion. Max Factor developed a makeup shade especially for her, but
they called it Egyptian. God forbid there would be makeup for black
Lena Horne once said, “I don‘t have to be an imitation of a white
woman that Hollywood sort of hoped I‘d become. I‘m me and I‘m like nobody
else.” Damn straight. So now, from the 1943 film, “Stormy Weather,”
singing “There‘s No Two Ways About Love,” here is just a few precious
seconds of the irreplaceable Lena Horne.
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