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'The Last Word with Lawrence O'Donnell' for Monday, April 24, 2014

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April 24, 2014

Guests: Howard Dean, Lucia McBath, Tamika Brown-Nagin

ARI MELBER, GUEST HOST: Deadbeat rancher has racist views about slavery,
but today he says he is not a racist. In other news, he is not a player,
he just crushes a lot.


UNIDENTIFIED FEMALE: Bundy`s 15 minutes of fame are now 15 minutes of

UNIDENTIFIED FEMALE: Nevada rancher, Cliven Bundy.

UNIDENTIFIED MALE: Isn`t he using land that he hasn`t paid for?

UNIDENTIFIED FEMALE: The Nevada rancher who refused to pay the government
more than $1 million.

UNIDENTIFIED FEMALE: A million in back fees.

UNIDENTIFIED MALE: I heard it`s about freedom.

UNIDENTIFIED FEMALE: The Bundy backlash.

UNIDENTIFIED FEMALE: Bundy launched into a tirade.

UNIDENTIFIED FEMALE: Racist remarks made by Cliven Bundy.

UNIDENTIFIED FEMALE: Buckle your seatbelts, here`s the quote.

UNIDENTIFIED FEMALE: Quote, "I want to tell you one more thing I know
about the Negro."

UNIDENTIFIED FEMALE: "I`ve often wondered, are they better off as slaves?"

UNIDENTIFIED FEMALE: Really, you know, appalling, blatantly racist

UNIDENTIFIED MALE: A racist at best.

UNIDENTIFIED MALE: He`s obviously a nut.

UNIDENTIFIED MALE: What is dinner talk like up on Bundy`s ranch?

UNIDENTIFIED FEMALE: Bundy`s cause has previously drawn support from
Senator Rand Paul.

UNIDENTIFIED FEMALE: Senators Ted Cruz, Rand Paul, and Dean Heller of

UNIDENTIFIED FEMALE: And Dean Heller, who called him, quote, "a patriot."

JON STEWART, COMEDIAN: He doesn`t recognize America`s existence.

UNIDENTIFIED FEMALE: Today, Republican politicians are running as fast as
they can away from Nevada rancher Cliven Bundy.

UNIDENTIFIED FEMALE: Now, it falls on these lawmakers who saw him as a
patriot after shocking racial remarks.

UNIDENTIFIED MALE: Cliven Bundy was a phony symbol in the first place.

UNIDENTIFIED FEMALE: Bundy`s 15 minutes of fame are now 15 minutes of

UNIDENTIFIED FEMALE: I suspect a lot of people are going to be saying, who
is Cliven Bundy?


MELBER: I`m Ari Melber, in for Lawrence O`Donnell.

And we begin with a revealing development in an important story. For
weeks, prominent conservative pundits and politicians called this man a
hero and patriot for taking stances like this.


CLIVEN BUNDY, RANCHER: Disarm the federal bureaucrats. Take the federal
United States bureaucrats` guns away. That`s my message today.


MELBER: Rancher Cliven Bundy waged a decade long battle with the federal
government over his unpaid bills and misuse of federal lands. When he
welcomed armed protesters to his ranch in a recent standoff with federal
authorities, he became a folk hero on FOX News and among some Republicans.

That embrace was disturbing, as many critics pointed out. And that embrace
is ending -- but not necessarily for all of the right reasons.

Tonight, most Republicans want everyone to forget all about Cliven Bundy
because he spoke directly about ignorance, racial resentment and outright
racism that animates his world view, comments that land on the front page
of "The New York Times" today and ricocheted all around the web.


BUNDY: I want to tell you one more thing I know about the Negro. When I -
- when I go -- went -- go through Las Vegas, and North Las Vegas, and I
would see these little government houses, and in front of that government
house the door was usually open and the elder people and the kids and there
was always at least a half a dozen people sitting on the porch.

They didn`t have nothing to do. They didn`t have nothing for their kids to
do. They didn`t have nothing for their young girls to do.

And because they were basically on government subsidy, so now what did they
do? They abort their young children. They put their young men in jail.
Because they never -- they never learned how to pick cotton.

And I`ve often wondered, are they better off as slaves picking cotton,
having family life and doing things, or are they better off under
government subsidy?

Yes, they did give them no more freedom. They got less freedom. They got
less family life. And their happiness, you can see in their faces they
weren`t sitting on the concrete sidewalk. (INAUDIBLE) growing the turnips.

So, that`s all government. That`s not freedom.


MELBER: Bundy may be out of touch. He heard his comments were
controversial among people who had been championing his cause last week.

Several national Republicans who`ve been defending him spoke out pretty
unequivocally about his remarks today, as did conservative media figures
like Glenn Beck and Greta Van Susteren and FOX News.

And Rand Paul, who had been a supporter, issued this comment to us here at
THE LAST WORD. He said, quote, "His remarks on race are offensive and I
wholeheartedly disagree with him."

So, today, Bundy said he wanted to clarify his comments at a press


BUNDY: I wasn`t saying I thought that they should be slaves. I was not
saying they`re better off. I was wondering if they`re better off.

They`re not slaves no more. They seem to be slaves to the welfare system
and this type of thing. But they have opportunities. Look, we have -- a
good example I guess. Look how far we have come to have a president.


MELBER: OK. We will get to Mr. Bundy`s view of the significance of
President Obama`s election in a minute. But his clarifying statement
didn`t back off the core argument about modern slavery.


BUNDY: This thing about slavery and about Negroes, and about government
subsidies, and slavery, put people in when they get them, that need to be
discussed. And America is ready to discuss it. Let`s do it.


MELBER: That needs to be discussed.

The idea that America needs Cliven Bundy any racist rants to have a
discussion about race or slavery or subsidies might be funny if it wasn`t
so enragingly offensive. And Bundy`s obvious hypocrisy in speaking out
against government benefits when he is famous here for one thing, being a
deadbeat rancher, who`s stealing property and grazing rights from our
public lands. That might be enough to dismiss him entirely from any press
coverage or attention if, if he wasn`t already held up as a patriot by so
many powerful conservatives in government and in media, people who know

Now, today, they are dropping Bundy as I mentioned, but not because he was
wrong, and violent and irresponsible, which was clear yesterday. Today,
they`re dropping Bundy because he has become politically toxic. And today,
the man who may have done more than any one else to elevate Bundy`s cause
now dismisses him as beyond the pale.


SEAN HANNITY, FOX NEWS: His comments are beyond repugnant to me. They`re
beyond despicable. They`re beyond ignorant to me.


MELBER: If all developments are progress of a very narrow calculated
variety. It says something that conservatives don`t want to defend
deadbeat rancher who proved to be anti-black. But they stood by him when
they knew he was anti-American.

Joining me now, Eugene Robinson, Pulitzer Prize-winning writer for "The
Washington Post," and Jonathan Capehart, also from "The Washington Post,"
both MSNBC analysts.

Eugene, what do you make of what we learned today?

EUGENE ROBINSON, THE WASHINGTON POST: Well, I am shocked -- shocked, that
Bundy`s world view is racist in addition to being sort of beyond Tea Party
crazy. I mean, he kind of denies the existence of the federal government.
He thinks only county sheriff can arrest you.

He has this sort of way, way out there views. You know, he is right about
one thing. I never learned to pick cotton.

But beyond that, you know, you know, it`s amazing that he was ever taken
seriously. And I suppose in a sort of thank heaven for small favors sort
of sense, it is at least the conservatives are running away as fast as they
can today. If not for the right reasons, then at least they`re doing it.

MELBER: Right. At least they`re doing it. You heard me say that.

But that is such I think an important part here.

Jonathan, take a listen to what Sean Hannity said as recently as April
15th, on Tax Day. Take a listen.


HANNITY: I mean, we have rapists, murderers, and bank robbers, and
pedophiles out there and they`ve got 200 agents, you know, surrounding your
ranch because your cows are eating grass on land that they don`t even want
or need. And that you`re arguing it isn`t even theirs.


MELBER: They embrace this. They elevated him.

As I mention they knew belter. Before you get to this ugly part of what
animates him, this whole thing was, anti-government, unpaid bills,
freeloading, and we do have a system of laws in the country, and, big
surprise, they`re enforced.

JONATHAN CAPEHART, THE WASHINGTON POST: Right. And that`s the thing that
kills me about the whole thing. I mean, I think you hit on it right away.
They`re running away from him because he is anti-black. But they stuck by
him. They put him in a bear hug when he was anti-American.

I mean, it`s the federal government trying to enforce the laws which I
thought -- folks like Cliven Bundy and all the folks on FOX News and
Republicans were about law and order, unless law and order goes against
people who you view as patriots, as heroes. When it goes, runs against
everything that they say that they believe in, and everything that this
country stands for.

If Cliven Bundy could get away with what he is doing, then what`s to say
that other people in other parts of the country say, well, you know what,
well, if he can get away with it, why shouldn`t I? And maybe the
consequences might be worse.

MELBER: Yes. And, Gene, that`s what goes to this. We want to have cooler
heads prevail here. And yet we would be remiss if we didn`t acknowledge
the fact that there is an interplay between what some of the conservative
media were doing, and the fact that there were people willing to come out
to his ranch, to, to play around with this idea of an armed resistance and
rebellion. Don`t we have to care about that?

ROBINSON: Well, we do have to care about that. I mean, you know, look --
basically why was the right drawn to the story of Cliven Bundy?

I would argue that it is not just that -- you know, it is despite the fact
that he was a clearly a deadbeat. He was sort of making a stand against
the evil federal government and evil Obama administration. I think,
frankly, whose president means a lot here.

And, and -- the symbolism of that. You know, this, this, rancher, this,
Western figure, who is standing up to the goon from Washington its
something that I -- that`s attractive to that sort of, that segment, I
think of the political spectrum. And to people who have TV shows and radio
shows who want to play to that spectrum.

So, now, they have off to take it all back and pretend he never existed
because, we now know of his racist views. Whereas if he hadn`t said that
to the Adam Nagourney of "The New York Times", they`d still be at it.

MELBER: They would absolutely be at it, Gene. I mean, you put your finger
on it with the regard to the fact that we have this black president who, of
course, Mr. Bundy referenced there in some of the video we showed. His
dispute predates this administration. So, on the one hand as an
individual, he had some very severe views and his lawlessness, I should
mention, predates it.

But it`s not him alone. What made this so dangerous, Jonathan, was that
there were so many people willing to come in and join.

Take a listen to what my colleague, Joe Scarborough, talked about this
morning on this pattern.


JOE SCARBOROUGH, MSNBC ANCHOR: This has happened before. It happened when
conservatives race blindly to put their arms around George Zimmerman, a man
who they didn`t realize, who gets, gets in all of these troubles, because
of the basically, pick their friends based on, who their, quote, "friends
enemies" are. Here, in this case, you have a lot of people in conservative
media, so-called, I put that in quotes, quotes, that have raised to this
guy`s defense. And they must be feeling very exposed this morning.


CAPEHART: Yes, they should be feeling very exposed. In fact, a lot of
them are -- a lot of them came out and denounced what, what, Cliven Bundy
said. Senator Heller did. You just read something from Senator Paul.

But, here`s the thing and, Joe talked about this pattern. One thing we
have to keep in mind is that what Cliven Bundy said its not an isolated
statement. He is not the first person from the right or even the first
Republican in office to extol the wonders and the virtues and the beauty of
slavery. He is not the only one, which is why I think, it resonates so

What Cliven Bundy said is not something that is strange to people who have
been listening to it and hearing it for years now.

MELBER: Right. There was the whole predicate for that.

Eugene, Robinson and Jonathan Capehart, thank you both for joining me
tonight. Appreciate it.

CAPEHART: Thanks, Ari.

ROBINSON: Thanks, Ari.

MELBER: Coming up, we have good news for Democratic candidates in some
Southern states. David Axelrod and Howard Dean are here for that.

And nearly 700,000 pages of documents from the IRS could make a case for
Darrell Issa. Now, he`s expanding his dragnet to Eric Holder`s Justice


MELBER: While debating a paycheck fairness law yesterday, New Hampshire
Republican State Representative Will Infantine said this --


STATE REP. WILL INFANTINE (R), NEW HAMPSHIRE: Men by ad large make more
money because of some of the things they do. Their jobs are, by and large,
riskier. They don`t mind working nights and weekends. They don`t mind
working overtime, or outdoors in the elements.

Oh, no, this is not me. (INAUDIBLE) this is the United -- this is the
United States Bureau of Labor Statistics. These aren`t my numbers.


MELBER: Mansplaining alive and well there. The bill passed the House and
Senate and Governor Maggie Hassan says she will sign it.

Now, coming up, are Republicans and Democrats living in totally different
world? Howard Dean and David Axelrod join me next.



KARL ROVE, GOP STRATEGIST: I think New Hampshire and Iowa, which I awarded
to, to Romney are tossups. But I tend to think they`re going to come out
on, on the Romney side.

BILL O`REILLY, FOX NEWS: If Romney loses New Hampshire and Iowa, he wins
the election.

ROVE: Still wins.

And in Nevada, Wisconsin, Pennsylvania, are all in play.

DICK MORRIS, FOX NEWS CONTRIBUTOR: Romney will win this election by 5 to
10 points in the popular vote. And will carry more than 300 electoral

would win. We saw the polls were very close.

But we knew the energy and passion was with our voters. And my heart said
we were going to win.


MELBER: Memories.

Of course, all politicians do hype good polls. But the key is not to hype
yourself out. You don`t want to inflate polling. And that doesn`t always
help you inflate the results.

Now, with those basic political truths in mind, let`s take a look at some
interesting results from "The New York Times" Kaiser poll. There`s good
news here for Democratic incumbents in three Southern Senate races, races
that might determine the balance of power in the U.S. Senate.

The best news is for Democrats in Arkansas, where the poll has incumbent
Senator Mark Pryor up 10 points over his Republican opponent, Congressman
Tom Cotton. We are months out from election day, so one measured reaction
would be to say, hey, this race could change a lot.

But some conservative politicos are going further. They`re reprising some
of that talk you just saw of skewing and also sour-grapes the dogged them
in 2012.

Here`s Bill Kristol, the former Bush official and "Weekly Standard" editor
who called that entire poll that I mentioned bogus, and the National
Republican Senatorial Committee also went after the messenger saying,
quote, "The data is unreliable and misleading."

Democrats responded saying, D.C. conventional wisdom is flat-out wrong in
Arkansas. And there is mounting evidence of Mark Pryor`s strength.

Let`s get into it with former Vermont Governor Howard Dean, who also ran
the DNC, of course, and MSNBC senior political analyst, David Axelrod,
former senior adviser to President Obama.

Welcome, gentlemen.

David, let`s start charitably and say that when you are on a campaign in
the thick of it, of course, you want to read things and read the polls as
positively as possible. You`ve done this. You`ve been in a lot of those

But you got to step beyond that when you go out in public, right?

DAVID AXELROD, MSNBC SR. POLITICAL ANALYST: Well, I think also you have to
look at the preponderance of data that`s out there and a number of these
races, there are other polls that confirm these polls. These polls, you
know, the Arkansas race -- maybe the Arkansas numbers maybe a little
optimistic, but there`d been a series of polls showing Pryor moving too the

And there`s a reason for it. He`s been hitting Tom Cotton on his positions
on Medicare and Social Security. And the people of Arkansas don`t like
what they`re hearing.

So, there is an explanation for this movement. I think these guys look
silly, making the polls the issue. I don`t think voters care about polls.
They care about candidates and positions. And Democrats are making
forceful cases right now.

MELBER: Yes. So, Governor Dean, having run for governor, run for
president, in an environment where people do track these polls a lot, why
do you think they`re focused on trying to say this is wrong rather than
well there is time left, and we can still beat Mark Pryor?

HOWARD DEAN, FORMER DNC CHAIRMAN: I think Republicans have a history of
basically using propaganda. And if the polls and the facts get in the way,
they just simply get rid of the facts. That`s their history over a period
of time, which is why they`re ineffective in Congress, because facts
actually do matter in the long run.

So, here`s what I think. I think this is a good sign. I think we have a
ways to go, or six months out. These aren`t binding polls.

But there are other polls, including one in "The Times", couple days ago.
I don`t think it was done by `The Times". It was reported in "The Times",
which showed that so-called Obamacare, the Affordable Care Act is, polling
better by a small significant number of points. That is why the polls are
getting better for Landrieu, they`re getting better for Pryor.

And, I actually think that Landrieu, Hagan and Pryor definitely, I mean,
Landrieu, Hagan and Begich are definitely going to win. And I think Pryor
now has a clear shot, where people have written him off before and I think
that means that we`re going to win the Senate. But this is too early to be
sure about that.

But there are a number of polls in the right direction on the presidency,
on Obamacare, and on these individual senators, when that happens.

You watch, Nate Silver. He`s very good. A month ago, he predicted we were
going to lose. And it was a 60 percent chance. His next prediction, the
percentage will be smaller and it may well be that he says the Democrats
are going to win, because he`s just an aggregator.

MELBER: David, what do you think of that? Also speak to the accuracy of
the Republicans` view of how popular Obamacare is?

AXELROD: I think that there is no doubt that that has changed. It is
improving because of what happened with the exchanges. The Republicans
have put all of their chips on that one number. And they just keep,
playing it.

I think they`re burning themselves out. I think people have heard these
arguments. It is baked in the cake now. Now, there`s been improvement
because of the exchanges.

And I think what people are saying is, don`t you have anything else to say?
Don`t you have anything to say about the future? Don`t you have anything
to say about how we will get middle-incomes up and how are we going to get
this economy to work for working people, and not just people at the top?
Don`t you have any answers for us?

And the Republican Party made I think a bad bet in pitching everything to
their opposition to Obamacare.

DEAN: Here is the biggest, basic problem. About after this is said and
done, as we get closer to the election, roughly one out of every 20 people,
about 5 percent of the population in the United States is going to be, have
health insurance because of Obamacare.

That means there is a pretty good chance that every single American is
going to know some one who benefited from this. Now, there will be people
who say, I got screwed, I didn`t like this insurance. A vast majority are
going to say things like, I`m a breast cancer survivor and I wouldn`t know
what to do if I couldn`t get this insurance.

When you know somebody individually who has benefited from Obamacare that
you care about, it is different than being mad about some bill that you
don`t know anything about, but just listen to FOX News about.

These numbers are getting better. And it`s why I think we`re going to hold
on to the Senate.

MELBER: Yes. You know, I mean, David, the governor is basically speaking
to the sort of the time-lapse of politics. Any time we say, oh, this
person is acting politically. We are saying two things. One they`re being
moved by the numbers which happens a lot. We all know.

And two, they have some interpretation of the numbers.

What do you think of the governor`s idea here that, there is a lag and, as
the ACA improves, some of these Republicans will eventually have to catch
up with the fact that even in red states, on Medicaid expansion.

DEAN: Right, Kentucky a good example.

MELBER: Yes, the policy you just mentioned -- that people like it.

AXELROD: Look, I think that is true. I think that they`re going to have
to find other things -- they`re going to have to find other issues, to talk

One thing I would say. You said there were two interpretations of numbers.
They tend to look at the numbers within their base. Within their base, no
doubt in my mind, that the Obamacare issue is a motivating issue.

Their problem is independent voters have basically even in Florida 13 which
they touted as a big victory, independent voters rejected their arguments
on Obamacare, rejected the repeal arguments. They just didn`t vote in
large numbers.

So, I think I would have concerns if I were Republican, simply predicating
my notion that if I say I`m going to repeal Obamacare, that I`m going to
win these elections. These are going to be close elections. Make no
mistake about it. In all of the states that were mentioned. We shouldn`t
get overly worked up early polls. The structure, I`m going to be close.
But I think they make a bad bet on Obamacare issue.

DEAN: There is another big problem, very quickly with what they have done.
They bet as David said. They bet the farm on this issue. This is a party
that is known in addition to all of the crazy stuff that is going on in
Nevada as a group of people who say no to everything.

MELBER: Right.

DEAN: Their last chip is to stay no to something that now appears to be
working. They have an enormous problem. They haven`t stood for anything
positive for four years. What are they going to do?

MELBER: And you know what they say? You just say no to skewed polling as

Governor Howard Dean and David Axelrod, thank you both. Appreciate your
time tonight.

Coming up, the mother of Jordan Davis, Lucia McBath, what she`ll say to the
NRA tomorrow and what she has the to say about Georgia`s new guns
everywhere law.


MELBER: In the spotlight tonight, the NRA and Georgia`s new gun law.
Fresh off their victory lap after the signing of Georgia`s guns everywhere
law, the pro-gun group will hold its annual convention this weekend. Gun
reforms -- the gun reform group, Moms Demand Action, will hold a gathering
outside of the NRA convention in Indianapolis. And among those gathered
will be survivors of gun violence and the families of victims.

And that includes Lucia McBath, mother of Jordan Davis. She will join me
in just a moment.

As MSNBC has reported the new law in Georgia, which takes effect July 1st,
will allow gun owners with permits to carry firearms into churches,
synagogues and mosques as long as they allow it. Guns are now cleared for
restaurants and bars.

And it is not, as Martha Stewart would say, a good thing. There are also
fewer restrictions for guns on this side of the airport TSA check points
and in government buildings that don`t have security check points or at
least outside them. That exclude the state capital however.

The law also allows schools to arm teachers. When signing the legislation,
Republican governor Nathan Deal touted, not his record of necessarily
protecting Georgians from violence, but the seal of approval he got from
the NRA.


GOV. NATHAN DEAL (R), GEORGIA: My position on this bill should not come as
much of a surprise. I think my track record speaks for itself. The NRA
gave me an a rating throughout my more than 17 years as a member of
Congress and even endorse me when I ran for this present office of
governor. Now as governor I have signed every second amendment piece of
legislation that has been placed on my desk.


MELBER: Joining me now is Lucia McBath, spokesman for Moms Demand Action
for gun sense in America. Her 17-year-old son, Jordan Davis was a victim
to gun violence in November, 2012. Something we have reported on.

Welcome. How are you?


MELBER: I`m good. Tell us what you are doing outside the NRA convention?

MCBATH: Well, basically we are not going to cause any conflict or
disturbance to the citizens of Indianapolis. But basically what we are
going to do its just spend some time trying to get the NRA leadership as
well as the lobbyists to stop espousing deceitful information that they`re
passing about the nature of gun violence in this country.

Also, too, we want the NRA leadership to understand that, you know, 90
percent of the, Americans in this country, want some common sense gun
legislation. And they have members within their owned organization that
pretty much believe and support what we do as an organization.

So we want them to be mindful of those members that they already have
collectively in their organization that believe and support that there
should be some common sense resolutions for gun safety in this country.

MELBER: Yes. And one thing worth noting and that we have discussed before
in this Georgia law that is obviously relevant is the stand your ground
issues. I`m reading from an article here, the bill`s detractors, emphasize
a pre vision that they argue will expand Georgia`s stand your ground law,
allowing felons to claim self defense if they feel threatened and end up
killing someone with a gun. Those opponents say -- a Georgian sent a
search office analysis of the bill. I should mention, of course, that
these things can get complicated. And people debate exactly how it will
work and stand your ground itself sometimes is a rule and sometimes it is a
jury instruction.

But, at a bottom line level, talk to us about that issue here, your views
of it.

MCBATH: Well, as a victim myself, I know that that is definitely a
misnomer. Expanding the stand your ground legislations, giving convicted
felons, using illegal guns, you know, the means and necessary to be immune
for the criminal behavior, you know, that they have done toward the
individual, toward the victim. I know firsthand that this is just
dangerous legislation. I know that we are going to see what is going to be
considered justifiable homicides continue to rise in the state of Georgia,
just as we have seen it in other states, particularly Florida. So I know
that I am very saddened with what is happening with the gun legislation
particularly the stand your ground law. I think this expansion is only
just tragedy waiting to happen.

MELBER: And when you think about those arguments that you are making and
the experience that you do have, what is the -- this is sort of a basic
question, but I am curious, what is the value there of having the
interactions that you will with, with these strong second amendment
advocates at the convention. What do we hope comes out of that?

MCBATH: Well, the thing is that, you know, it`s never been about taking
away the second amendment rights of individuals in this country. It has
never been that. But what we have to do is make sure that we combine with
the second amendment rights, you know, common sense -- gun safety laws.
There is an accountability and a responsibility for that as well and
combing with individuals second amendment rights. So that`s what we need
the NRA to understand. And that is basically our goal.

MELBER: Yes, I think that`s important. I think you are doing something
very civic. And we will, I think be, interested to hear how it goes and
wish you good luck out there talking with folks and sharing your views.

Thank you, Lucia McBath.

MCBATH: Thank you. Thank you.

MELBER: Absolutely.

Coming up, the divide on the Supreme Court on full display.

And also, Darrell Issa`s new target in this so-called IRS scandal, it`s
Eric Holder.


MELBER: Former U.S. Supreme Court justice John Paul Stevens was asked
today by NPR if possessing marijuana should be legal under federal law.


JOHN PAUL STEVENS, RETIRED JUSTICE: Yes, I really think that that`s
another instance of public opinion has changed and recognize that the
distinction between marijuana and alcoholic beverages is really not much of
a distinction. Alcohol, the prohibition, against selling and dispensing
alcoholic beverages has, I think been generally, general consensus that it
was not worth the cost. And I think really, in time that will be the
general consensus with respect to this particular drug.


MELBER: Coming up next, justice Sonia Sotomayor says the right-wing of the
court lives in a whole another world. That`s next.


MELBER: And one of the most personal and perhaps emotionally rigorous
dissents, Sonia Sotomayor or the courts first and only Hispanic justice
wrote this in this week`s Michigan affirmative action decision.

My colleagues are of the view that we should leave race out of the picture
entirely and let the voters sort it out. It is a sentiment out of touch
with reality. Race matters for reasons that really are only skin deep that
cannot be discussed any other way and that cannot be wished away. Race
matters to a young man`s view of society. When he spend his teenage years
watching others tense up as he passes no matter what neighborhood he grew
up. Race matters to a young woman`s sense of self when she states her
hometown and nowhere are you from regardless of how many generations her
family has been in the country. Race matters because of the sleights, the
sneakers, the silent judgments that reinforce the most crippling of
thoughts. I don`t belong here. The refusal to accept the stark reality
that race matters is regrettable.

Justice Sotomayor`s dissenting opinion in the case, perhaps underlies the
importance of what many of these universities are trying to achieve and
what the Supreme Court often has lacked, a diversity of backgrounds.

That`s one of the enduring things about the Supreme Court. It is an
institution of tenure and that makes it almost automatically the slowest
moving branch of government when it comes to diversity.

Of the more than 100 justice whose sat on the bench, take a look at this,
an overwhelming majority are white. There have been only three minority
justices on the bench. There a good marshal Clarence Thomas and Sonia
Sotomayor. And throughout all of our history including up to today only
four women. Alena Kagan, Ruth Bader Ginsburg, Sandra Day O`Connor in
addition to Sotomayor. So if you break that down it means the court`s
history and its entire history only 2.7 percent of justices have been
minorities and under four percent have been women.

Chief justice John Roberts in this decision directly responded to

He wrote, to disagree with the dissents views on the costs and benefits of
racial preferences is not to quote "wish away rather than confront, racial
inequality. People can disagree in good faith on this issue but it
similarly does more harm than good to question the openness and candor of
those on either side of the debate." An unusually strong rebuttal there
and personal one.

Joining us now is Tomiko Brown-Nagin professor of constitutional law at
Harvard, University, co-director of the programming law in history and the
author of the book, "courage to dissent, Atlanta, and the long history of
the civil rights movement."

And honor to have you here tonight.

Thank you for having me.

MELBER: First, just walk us through this conflict here that has, gotten
somewhat personal, though maybe in a positive and revealing way between the
two justices.

Well I think what we are seeing on this court is a plurality of justices
led by the chief justice John Roberts, indicating in a number of decisions
whether it is education or employment or voting that explicit racial
classifications have no place in the law unless they`re the supported by
current findings of invidious racial discrimination.

And for these justices racial discrimination means something very definite.
It means -- what we may think of racial bias in one`s heart. That is
evidenced by, you know, explicit actions that all of us would find most of
us would find objectionable like Jim Crow or Bow Carter`s dog. That is
what the majority or plurality of the court is saying.

On the other hand you have justice Sotomayor along with justice Ginsburg
and Breyer arguing something quite different. Their conception of racial
discrimination is that it can reveal itself by social and economic
conditions that suggest racial disadvantage. And that`s what justice
Sotomayor was indicating in her powerful dissent.

MELBER: I think that is very well put. And you are speaking to the fact
that, and this comes often a lot of the civil rights laws whether there
will be a systemic analysis. What is the aggregate impact of something
versus did you find, as you put it, personal (INAUDIBLE) or invidious

But there is also something fascinating going on when these justices who
been to law school and been in these environments than look back at the
programs in hype higher education.

Take a listen to something, Justice Sotomayor said on CBS when talking
about what it means to be a minority or successful minority and think about
affirmative action. Take a listen.


UNIDENTIFIED FEMALE: You can`t be a minority in the society without having
someone express disapproval about affirmative action.


MELBER: What is she getting at there?

BROWN-NAGIN: Well, it is very interesting. Justices Sotomayor and Thomas
have in some ways expressed a similar view about some of the disadvantages
of affirmative action but they have come out very differently on the bottom
line of whether these programs are ultimately useful. So she is talking
about something that justice Thomas calls the stigma of affirmative action
and he said that in part because of what he views as the stigma of
affirmative action that, you know, as what I would call a policy matter,
the programs ought not be used and ought not be upheld by the Supreme
Court, justice Sotomayor obviously takes a different view.

MELBER: Right. And that, at that level, I mean you are referring in part
to justice Thomas` decision in the Texas case where he actually made some
analogies to slavery, something we think about today slavery in the news in
all sorts of political ways. And yet you don`t hear the same concern about
someone who benefits from nepotism or benefits from white male privilege
saying I am so worried people may think that`s why I got ahead.

BROWN-NAGIN: That`s true. And one of the things that I will say is a
little odd about those kind of arguments is that, of course, racial stigma,
the stigma of dark skin color obviously pre-existed, you know, the advent
of affirmative action policies. I think there was racial stigma during the
era of slavery and Jim Crow.

So, there, there are different ways in which to look at that particular
issue. And we probably would benefit from understanding it and all of its

MELBER: Yes, I appreciate that point. A fitting point to end on. And
really appreciate the chance to talk to you. You have done a lot of
scholarship in this area.

Tamika Brown-Nagin, thanks for your time.

BROWN-NAGIN: Sure, you are welcome.

MELBER: Thank you.

Coming up. Darrell Issa is not going to like this.


MELBER: There is more proof the IRS pursued liberal groups more that tea
party groups. That means Darrell Issa has to hunt somewhere else. That`s
straight ahead.



targeting of president`s political enemies effectively and lies about it
during the election year.


MELBER: It has been 344 days now since Darrell Issa made that in response
for allegation on TV. And today, since Issa has clearly gotten nowhere in
the investigation, rather than close up shop, he is expanding his dragnet
to the DOJ. In fact, he sent a letter today to attorney general Eric
Holder requesting quote "all documents and communications referring or
relating to 501c4 and Lois Lerner from 2009 on.

Issa`s new investigation was sparked by this quote "shocking internal IRS
e-mail sent by Lois Lerner about a phone call Lerner received from the DOJ
in May 2013." Now, in the e-mail, Lerner writes, that the director of the
elections crime branch at DOJ wanted to know who at the IRS the DOJ folks
could talk to about Senator Whitehouse`s idea at a hearing that DOJ might
piece together false statement cases about applicants who lied about their
1024S saying they were planning on doing political activity and then
turning around making large visible political expenditures, DOJ is feeling
like it need to respond.

In the hands of Issa, that e-mail to him and him alone is a smoking gun.
Context is everything though. And what isn`t in the e-mail, DOJ was
responding to questions in a congressional investigative hearing, which is
OK from judiciary subcommittee on crime, chairman, Sheldon Whitehouse, a
Democrat about a specific violation.


SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: We often see here. We have
individuals, or corporations, anonymous entity, making a donation to a,
what appears to be a completely shell corporation designed just for the
purpose of laundering money into a super PAC and violating the law that
would require disclosure of true identity which would seem to be a pretty
clear 441f violation, making a contribution in the name of another.

And I am wondering why is the justice department doesn`t appear to bring
any of the cases. Making a false statement is something the department
prosecutes all the time. It doesn`t take particular tax expertise to
recognize a false statement when you see one or to prosecute one when you
see one. What are the inhibiting factors that prevent DOJ for going


MELBER: Now the hearing and the Lerner-DOJ conversation took place in 2013
after the 2012 presidential election. And it is worth remembering Issa`s
investigation is over a so-called scandal in which --


a single application for this status. This tax-exempt status was denied.


MELBER: Joining me now is "the Washington Post" political columnist, Dana.

Before we get into too many of the details, let me start with the question,
kids always ask, which is what is up with Issa?

with Darrell Issa`s to say that his committee has become a kangaroo court
is an insult to marsupials. This is just the latest incident in a pattern
that repeated itself through the IRS investigation and virtually all the
other investigations. He will come out with some siliceous bid of
information, some provocative allegation. And then you find out after the
fact that he was giving you, literally only one piece of hay from that
entire hay stack. And the facts are in fact contrary to what he had said
in the first place.

So, it`s not surprising that this has occurred. The committee had these
documents in the first place. So, you know, Elijah Cummings, the ranking
Democrat on the panel, asked for all the transcripts. All of the stuff to
be put out into the public domain. Issa objected. I think we are
beginning to see why.

MELBER: Yes. And some of this is coming out. There was a freedom of
information act request from think Progress, a liberal group that got the
IRS list. And they write that the 22, be on the lookout, key word list,
that`s the targeting, distributed staff reviewing applications between 2010
and 2013 included more explicit references to progressive groups and acorn
successors and pod organizations than to tea party groups?

MILBANK: Yes. And, contrast to what we had heard earlier. And I suspect
what you will hear, the Republicans say, is well it wasn`t the screening
that they would actually go after the, the tea party groups, and delay
their applications more extensively.

The problem here is as we have seen over and over again. We don`t actually
know what is going on because we are only getting Darrell Issa`s version of
events here. He could actually come up with the smoking gun at this point,
but the credibility is so shut (ph). It would be very hard for people to
actually know for sure whether what he is talking about.

MELBER: Yes. And that goes to larger piece here that I get frustrated
with and some people that follow politics do which is when this story
broke, I would describe the coverage as basically a bunch of people seizing
on it making it more than it was unfairly. And then, I will tell you, I
went on TV, and I said, well looking at the story, looking as a lawyer, if
these allegations are true, this is very concerning, government targeting,
civil liberties, this is the kind of thing we care about. And I said we
have to see, you know, what comes out.

And then if that is the spectrum right, then as the a political matter, if
you are cynical and don`t care about facts, some of the right-wingers say,
well we have a lot of smoke, and mirrors, and anger out of it. And then
the other folks said, well we will have to see. And they thought they ran
on that a couple months. Now, we are doing more accountability. I`m happy
to find when we have a freedom of information request, find out answers and
share them. What do you think of politically cynical view?

MILBANK: Well, look -- it was Mark Twain who said lie can get halfway
around the world while the truth is of putting on its shoes. And of
course, that is part of any strategy in this thing is to get the damning
allegation out there before it can beep d disproven. And if the public
doesn`t have access to information it is much easier to do that.

So, you know, you are right In the IRS case, left, right, and center.
Everybody looked at the original damning set of facts and said this is a
problem. Within weeks, people saw that, OK, this is not exactly what we
thaw it was. But Darrell Issa kept going with this the way he kept going
with Benghazi, the way he kept going with fast and furious. And that`s
been the pattern.

I mean, the irony is there is actually has been some bit of a smoking gun
found by Democrats in the Senate looking into department of homeland
security inspector general. Darrell Issa was busy pursuing a phony IRS
scandal and he apparent leap missed that one.

MELBER: Yes. And he may find politically this doesn`t add up too much.
Although, he got some headlines out of it. I don`t know what the
priorities are at this point.

Dana Milbank gets tonight`s "Last Word." Thank you.

MILBANK: Thanks, Ari.

MELBER: I am Ari Melber, in for Lawrence O`Donnell. You can find me on
Facebook at

And "ALL IN WITH CHRIS HAYES" is up next.


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