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'The Last Word with Lawrence O'Donnell' for Monday, November 10th, 2014

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THE LAST WORD WITH LAWRENCE O`DONNELL
November 10, 2014


Guest: Julian Epstein, Nicholas Bagley, Barbara Lee, Phyllis Bennis,
Cassandra Frederique, Flemming Rose


LAWRENCE O`DONNELL, MSNBC HOST: Rachel, the first time they went
fishing they get one way bigger than themselves? That`s amazing.

RACHEL MADDOW, TRMS HOST: A boatful of orphans and a 400-pound
marlin.

O`DONNELL: Amazing.

MADDOW: Thanks, Lawrence.

O`DONNELL: Thanks, Rachel.

Well, a year after its implementation, the Affordable Care Act is
headed back to the Supreme Court.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: You might feel this week like you`re stuck in some
kind of a time warp.

UNIDENTIFIED MALE: It`s a political issue that`s just not go away.

UNIDENTIFIED FEMALE: Yet another challenge to the ACA.

UNIDENTIFIED FEMALE: The biggest threat to the Affordable Care Act is
once again the Supreme Court.

UNIDENTIFIED MALE: Court challenge targets the tax credits that make
the law viable.

UNIDENTIFIED MALE: The thing that pretty much pays for all of it.

UNIDENTIFIED FEMALE: Subsidies are key to keeping costs down.

UNIDENTIFIED MALE: The argument being made rests on something of a
technicality.

UNIDENTIFIED FEMALE: Little more than a typo.

UNIDENTIFIED FEMALE: It was sloppy drafting.

UNIDENTIFIED FEMALE: If the court were to strike down the subsidies.

UNIDENTIFIED MALE: You will have stories come out of people`s whose
lives essentially ruined.

UNIDENTIFIED MALE: Taking money out of people`s pockets.

UNIDENTIFIED FEMALE: Remove health insurance to more than 5 million
people.

UNIDENTIFIED FEMALE: It would be very disastrous.

UNIDENTIFIED FEMALE: We are going to have a successful open
enrollment.

UNIDENTIFIED MALE: Everything old is new again.

UNIDENTIFIED FEMALE: Healthcare.gov Web site is now up and running.

UNIDENTIFIED FEMALE: Simpler, faster and more intuitive.

UNIDENTIFIED FEMALE: Officials have promised an improved experience.

REP. JOHN BOEHNER (R-OH), SPEAKER OF THE HOUSE: The House, I`m sure,
at some point next year, will move to repeal Obamacare.

SEN. TED CRUZ (R), TEXAS: Do everything humanly possible to repeal
Obamacare.

UNIDENTIFIED MALE: It`s saving lives and it`s reducing the deficit.
I don`t know what more you would want.

(END VIDEOTAPE)

O`DONNELL: The Supreme Court has decided to take another look at the
Affordable Care Act. The court will consider whether Congress intended to
provide subsidies to purchase health insurance to everyone who qualifies or
only to people who qualify in states that have set up their own health care
exchanges, not the federal government exchange.

This summer, two federal appeals courts ruled in two different ways on
that question. And the fourth circuit court of appeals in Virginia ruled
unanimously that lawmakers clearly intended for everyone who qualifies to
be eligible for the subsidies.

But the D.C. circuit court of appeals ruled in a 2-1 decision that the
government is only authorized to provide tax credits for insurance
purchased on state exchanges, not on the federal exchange. Only 16 states
have set up their own health insurance exchanges.

Robert Pear of "The New York Times" reports, for people who obtained
insurance through the exchanges this year, subsidies reduced the average
premium by more than 75 percent to $82 a month from $346. About 4/5 of the
people buying the insurance on the exchange qualified for subsidies this
year. If the court blocks payment of subsidies through the federal
exchange, the ruling could cut off financial assistance for 4.5 million
people.

The Supreme Court is expected to hear the case as early as February.

Joining me now, Nicolas Bagley, professor at the University of
Michigan Law School. He previously worked as an attorney with the
appellate staff in the civil division at the U.S. Department of Justice.

And Julian Epstein, former counselor for the House Judiciary
Committee.

I just want to read the legislative language of this that has created
this problem with the courts. It actually says that these subsidies are
available, and there`s a lot of technical language that precedes it, but to
basically, and to people who enrolled through an exchange established by
the state.

And, Julian, that`s the problem. The Democrats are all saying, look -
- I mean, an accurate drafting of that line would have said established by
the state or the federal exchange. It would have included that. A lot of
people referring to it as a drafting error, the kind of thing you and I
have seen lots of times in legislative language, especially bills like this
Julian are rushed through like this one was, and a lot of hasty drafting at
the last minute.

JULIAN EPSTEIN, FORMER COUNSEL FOR HOUSE JUDICIARY CMTE: Right, after
Senator Kennedy`s death.

Yes, that`s right. The plaintiffs, the people who oppose Obamacare
are resting their case solely on that one provision.

The problem is that, shortly after, and that was drafted very
sloppily, admittedly. The problem with their argument, is right after that
provision, the statute makes clear that the federal subsidies step into the
shoes of a state if a state fails to establish an exchange.

Secondly, it`s very clear to everybody that has looked at the drafting
of this issue and the legislative process that Congress had to have
intended that the federal exchanges be eligible for federal subsidies,
because the entire system doesn`t work unless you have subsidies for the
lower and middle income folks. In fact, the entire program will collapse
if this case is actually successful in the Supreme Court.

Third, and you and I discussed this in July a little bit, CBO, which
is regarded as the fair arbiter of how laws ought to be interpreted,
especially with budget implications they scored this bell as if the federal
exchanges were eligible for tax subsidies and for the time-honored
tradition here, the time-honored legal rule is to give deference to agency
interpretations and clearly here the HHS and IRS are interpreting the
provisions here, technically the ones I just outlined as clearly intending
by Congress to have the federal exchanges eligible for the subsidies.

If the Supreme Court is successful here, this will be, I think -- the
merits are so weak on behalf of the plaintiffs. If the conservatives in
the Supreme Court is successful in overturning the law, and this is
effectively be an overturning, this would be the most activist decision
since Bush v. Gore, without a doubt.

O`DONNELL: Nicholas Bagley, isn`t it possible -- I mean, Julian, I
think, is echoing there a lot of concern that Democrats and supporters of
the bill have, the Supreme Court, obviously, they voted for cert on this,
that means there are at least four votes that are interested on this
question. We don`t know which way that means they`re going. Is it
possible they took this case and they took the Virginia case specifically,
that`s the one that supported the Democrat`s view, in order to actually
solidify that, that they looked at the landscape out there and thought
we`re probably getting a bunch more of these on this exact thing moving
through other circuits, we might as well grab this now and lock it down
now? And they may very well lock it down in the way the Democrats intended
the legislation to read,

NICHOLAS BAGLEY, UNIVERSITY OF MICHIGAN LAW SCHOOL: It`s possible.
You never know given that all these debates happen behind closed doors, but
I think it`s very unlikely.

If the left wing of the court were inclined to solidify this, they
wouldn`t need to take the case. There was no split in the circuit courts.
The D.C. circuit court division which had struck down the tax rule had been
validated by the full court, which has agreed to hear the case in December.
And with the good money, is that the full D.C. circuit will flip that panel
decision, meaning that there wouldn`t be any split.

So, the only reason to take the case in the absence of a split is
because at least four members of the court are at least concerned that the
fourth circuit may have, in their life, got it wrong. That means, at least
as by counting, that they just need to pick up one more vote in order to
potentially invalidate the tax credits.

O`DONNELL: We actually have a recent book on this subject, called
"Judging Statutes". It is written by Robert Katzmann. He is as high a
judicial officer as we have, just below the Supreme Court. He`s the chief
judge of the second circuit court of appeals here in New York. And he`s
writing about how we should, how the courts should judge statutes.

This is what he says about this kind of case. Judge Katzmann says,
"What I think is critical for courts, discharging their interpretive task,
an appreciation for how Congress actually functions, how Congress signals
its meaning, and what Congress expects of those interpreting its laws,
although in a formal sense, the legislative process ends with the enactment
of a law, for the judiciary understanding that process is essential if it
is to construe statutes in a manner faithful to legislative meaning.

And, Julian, it seems that if the Supreme Court were following the
guidance that Judge Katzmann has here in his book about "Judging Statutes"
that clearly all the evidence that we have in the legislative and
rhetorical record of this process indicates that everyone, including the
opposition to the bill, expected that these subsidies would be available no
matter whether your state created an exchange or not.

EPSTEIN: Right. And what the judge is articulating there, and you
summed up the case very, very well, Lawrence. What the judge is
articulating there is known to some as a rule of statutory construction, a
rule of judicial constraint, which is if the court can interpret something
in a way that that upholds the statute, if there are provisions where they
maybe some conflict, the court ought to find a way to -- for the statute to
be valid.

Here you just have one ambiguous provision that you cited in the setup
piece. But, where it`s unclear whether tax subsidies apply to the federal
exchanges. But beyond that, you have multiple provisions where Congress is
very clear that they want these tax subsidies for the federal exchanges.

You have every -- you know, again, this entire statute doesn`t make
sense without the federal subsidies for the federal exchanges. And, again,
as I said when we started, the CBO clearly interpreted the law as requiring
subsidies for the federal exchanges. So, the case is just kind of
overwhelming, which again leads you to the conclusion.

If the conserve -- what the conservatives are trying to do here is got
the most activist effort we have seen since Bush v. Gore. It`s just --
there is no, there are very, very few people in the legal community who are
kind of not vested in this case who believe this case has much merit one
way or the other.

O`DONNELL: Nicholas Bagley, after big complicated bills like the
Affordable Care Act and after many rather small bills, we always, at some
point, soon thereafter, pass something that they call technical
corrections. And this was done constantly and these routine bills as
Julian knows, passing through both bodies, and they recognize that there
would be drafting errors in legislation, there would be interpretation
complications at the agencies, and they needed to technically correct the
legislation.

And very commonly, technical corrections bills would get votes even by
people who opposed the original legislation because they just thought --
well, you know, if there`s a leaky pipe in this house we should fix it even
if we didn`t want to build the house. If we needed to do technical
corrections bills, it seems to me, we did them because we were afraid of
exactly this kind of case -- that left uncorrected, a technical error in a
law, in a law could be brought to the Supreme Court to, in effect, remove
that provision of the law.

BAGLEY: I think that`s exactly right. Right now, in this current
political -- kind of toxic political climate it`s hard to see Congress
coming together to make a technical correction of the kind you imagine.
But they could fix this, Congress could, with a single stroke of a pen.
It`d be an easy fix, but it`s one that the Republicans in Congress don`t
want to make.

The end result could be depriving 4.5 million people on exchanges in
states with federally established exchanges of access to subsidies upon
which they depend to purchase their health plan. So, it`s exactly the kind
of catastrophic outcome that you`d think a functional political process
would allow us to avoid.

O`DONNELL: Julian Epstein, Nicholas Bagley, thank you both very much
for joining me tonight.

EPSTEIN: Thanks, Lawrence.

BAGLEY: Thank you.

O`DONNELL: Coming up, Rand Paul says President Obama`s war against
the Islamic State is now an illegal war. But Senator Paul actually wants
to help the president make it a legal war.

And New York City`s police commissioner showed us today just how much
marijuana his police force will let you carry without getting yourself
arrested. We will show you a video of the commissioner holding up a bag,
showing you the exact amount you can get away with carrying now.

And in the "Rewrite", Republicans say it`s yes, ma`am possible to
confirm a new attorney general in the lame duck session of the Senate, but
they are ignoring history, as we will show in tonight`s C-Span flashback.
If you watch really closely, you might be able to find me somewhere in that
old C-Span video. Hint, I had more hair then. We all did.

(COMMERCIAL BREAK)

O`DONNELL: Rand Paul says he wants Congress to vote to legalize the
war against the Islamic State. President Obama says he wants Congress to
vote to legalize and authorize the war against the Islamic State. So who
doesn`t want Congress to vote to authorize the war against Islamic State?
Who doesn`t like to cast tough votes? Oh, yes, most Democrats and
Republicans in Congress.

That`s next.

(COMMERCIAL BREAK)

O`DONNELL: Republican Senator Rand Paul issued a challenge to
Democrats today, confront President Obama over his illegal war against the
Islamic State. And in an op-ed from "The Daily Beast" entitled, "Obama`s
ISIS War is Illegal", Rand Paul wrote, "For a generation, Democrats stood
up against Republican presidents who they deemed to be too eager to go to
war or too ready to put troops in harm`s way without the full consent of
the American people, through their elected representatives in Congress.
Where have those Democratic protectors of the constitutional authority of
Congress gone? Was it always just a partisan attack on Republican
presidents? If not, when will Democrats who so vociferously opposed a
Republican president`s extra constitutional war-making powers stand up and
oppose President Obama`s constitutional usurpation of war-making powers?"

In the article, Rand Paul cited Yale professor Bruce Ackerman, saying,
"The war against the Islamic State is now illegal. The War Powers
Resolution of 1973 gave President Obama 60 days to gain consent from
Congress and required him to end hostilities within 30 days if he failed to
do so. This 90-day clock has expired this week."

Earlier today, President Obama sent a letter to House Speaker Boehner
requesting $5.6 billion to fund the war against the Islamic State. On
Friday, the president authorized the deployment of an additional 1,500 non-
combat troops to Iraq, almost doubling the amount of U.S. military
personnel in the country. Those troops, the president says, will not be
sent unless Congress approves the funds requested by the president.

On CBS`s "Face the Nation" yesterday, President Obama discussed the
addition of troops in what he called a new phase in Iraq.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: What hasn`t changed is
our troops are not engaged in combat. Essentially, what we`re doing is
we`re taking four training centers, with coalition members, that allow us
to bring in Iraqi recruits, some of the Sunni tribes that are still
resisting ISIL, giving them proper training, proper equipment, helping them
with strategy, helping them with logistics. We will provide them close air
support once they are prepared to start going on the offense against ISIL.
But what we will not be doing is having our troops do the fighting.

(END VIDEO CLIP)

O`DONNELL: Joining me now is Democratic congressman from California,
Barbara Lee, and Phyllis Bennis, a fellow at the Institute for Policy
Studies, and author of "Before and After: U.S. Foreign Policy and The War
on Terror".

Congressman Lee, what is your reaction to Rand Paul`s challenge to
your party?

REP. BARBARA LEE (D), CALIFORNIA: Well, first, I have to say Senator
Paul must have not read history, because this is total revisionist history
that he`s putting out. Of course, he was not in the Senate when these
authorizations took place.

Actually, Lawrence, I was the only one, Democrat or Republican, to
vote against President Bush`s authorization to use force which was a blank
check in 2001. When the Iraq resolution came forward, I offered an
alternative that said, hold up, let`s wait until the United Nations
conducts its inspections to determine if there are weapons of mass
destructions there. I only got 72 votes.

Again, Democrats voted with President Bush in a bipartisan way to
authorize Iraq. I, over the years, have offered amendments to withhold the
funding. It was called the Lee Amendment.

Myself, Congresswoman Watters, Congressman Woolsey, said look, the
only funding we should appropriate would be to protect our troops and bring
them home.

Well, guess what -- the majority of the House voted with, in fact,
President Bush.

And so, Senator Paul needs to not politicize what has taken place and
move forward and, as I am and many Democrats, encouraging the president to
come to Congress with an authorization, actually timely repeal the 2001,
and 2002 authorizations so that we can have a full debate on the cost and
consequences of this new war, which we are now in, because we have
committed our troops and our resources to this new front on the war, which
is a new war, not the old war.

O`DONNELL: Phyllis Bennis, it does seem that the 90-day clock under
the War Powers Act has expired. And there is no legal basis, now, for the
war against the Islamic State as of today.

PHYLLIS BENNIS, INSTITUTE FOR POLICY STUDIES: I think that`s
absolutely right, Lawrence. And I think the problem is that like
international law, laws on questions of presidential power are only
relevant if someone raises it.

So, Congresswoman Lee has raised it importantly, and others as well,
but until it becomes a major issue, the -- until someone actually tries to
hold President Obama accountable, I`m afraid that the legal technicality is
not going to be sufficient.

What will be sufficient, this issue should be in front of the
Congress, and the Congress should vote no, to say that we do not want to go
back to war. It didn`t work the last time, this notion that 3,000 troops,
we can call them combat troops or not -- I want to know what President
Obama thinks they`re going to do if they are shot at, if they have to use
their weapons by their own understanding of being, if they believe they are
in danger they will. That puts them at risk of being in combat. I think
it`s really sort of a sham to say that they`re not combat troops.

But whatever those troops are, we have 3,100 U.S. troops on the ground
that we know of right now in Iraq. And the notion that somehow 3,000
troops is going to be able to create and train a viable military, when
160,000 U.S. troops at any given moment rotating over a million troops over
the -- almost a decade in Iraq was unable to create a viable military, this
simply isn`t going to work.

It`s -- there is no way of building a proxy army. The CIA has already
said we can`t do it. It was extraordinary last week in the report that was
leaked from the CIA to "The New York Times" when they said there was only
one successful example, and that was Afghanistan, which, of course, led to
9/11.

O`DONNELL: Yes, Congressman Lee, the truth about your colleagues, it
seems to me, is that -- in both parties, they simply don`t like war votes.
They don`t like the pressure. They don`t like going on record. They don`t
like having to live with the aftermath of a war vote one way or the other.

And they all, they mostly seemed very happy to not be forced by their
leadership in the House or the Senate, by Harry Reid or John Boehner to
vote on any form of supporting the war against the Islamic state.

LEE: No, Lawrence, I believe when you look at what has taken place
over the summer in August, we have communicated to the president and to our
leadership, many of us, Democrats, mind you, and some Republicans, that we
want a debate and a full authorization, an up or down vote.

Many Democrats, I know, have called for that in our meetings, in our
caucuses. Our leader Pelosi has called for that.

And so, I think even though it may be a tough vote, we`ve cast many
tough votes in the past, but I believe, and that`s why I`m concerned about
Senator Paul trying to politicize this because I know Democrats want to
have this debate and talk about the costs and consequences and then call
for a vote, and that`s the way our Constitution works. That`s what it
requires, and we need to do our job, and I`m convinced the majority of
Democrats want to do their job.

O`DONNELL: Let`s listen to President Obama actually calling on
Congress to do its job and vote for this.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I`m going to begin
engaging Congress over a new authorization to use military force against
ISIL. The world needs to know we are united behind this effort and that
our men and women of our military deserved our clear and unified support.

(END VIDEO CLIP)

O`DONNELL: Phyllis Bennis, there`s the president asking for it.

BENNIS: We are not united behind this effort. That`s the bottom
lean.

There is no military solution. President Obama has told us that over
and over again. And he was right when he said it. He now seems to have
abandoned that original position that he took for really a very long time.

And I think that what we`re looking at here is a scenario all too
reminiscent of what happened right after September 11th, when we were given
one choice. We either go to war, on we let them get away with it. It was
a lie then, and it`s not true now.

We need to look at the alternatives to war. We need diplomacy. We
need to increase humanitarian assistance. We need new negotiations.

There are a whole range of things, but they`re all being undermined by
the military.

O`DONNELL: Congresswoman Barbara Lee and Phyllis Bennis, thank you
both very much for joining me tonight.

LEE: My pleasure.

BENNIS: Thank you.

O`DONNELL: Coming up, Republicans are telling stories about how
impossibly difficult it would be to confirm Loretta Lynch as attorney
general during a lame duck session of the Senate, but none of those stories
are true. That`s in the "Rewrite".

And, the police commissioner here in New York City today held up a bag
showing you exactly how much pot you can carry around with you and not get
arrested. You`re going to want to see this video. That`s next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

WILLIAM BRATTON, COMMISSIONER, NEW YORK CITY POLICE: The purpose is
to give you a sense, you, the public, what 25 grams of marijuana would look
like. That`s about it.

And so, not a large amount. And the number of joints, if you will,
that can be made from that amount varies, significantly, depending on how
much they put in each joint.

(END VIDEO CLIP)

LAWRENCE O`DONNELL, MSNBC HOST: I`m sure it does vary significantly.
In the "Spotlight" tonight, a new pot policy here in New York City starting
November 19th.

If you are found with 25 grams or less of marijuana, instead of being
arrested for a misdemeanor, you will be issued a summons to appear in court
at a later date and fined a hundred -- up to a hundred dollars for first
offense, up to $250 for a second offense.

One more time now, here`s the police commissioner showing you exactly
what 25 grams looks like. And I know he actually sounds a little high in
this, but he`s not. He`ll explain why.

(BEGIN VIDEO CLIP)

BRATTON: But that`s about, what, 25 grams. This is, for clear
explanation purposes, is oregano. It is not marijuana.

And all I can think of right now is pizza because I usually like
oregano on my pizza. But -- so, if you smell it, that`s marijuana.

But just for purposes of giving you an idea of what we`re talking
about.

(END VIDEO CLIP)

O`DONNELL: All I can think of now is oregano. Joining me now is
Cassandra Frederique, Policy Manager at the Drug Policy Alliance.

Cassandra, this is a big breakthrough here. What does it mean to New
York City.

CASSANDRA FREDERIQUE, POLICY MANAGER, DRUG POLICY ALLIANCE: I think
it`s really important that we take a step back and realize that what the
mayor and the police commissioner was talking about --

(BEGIN VIDEO CLIP)

-- was a law that`s already been passed in 1977. So, in 1997, when
they decriminalized marijuana, if you were in possession of up to 25 grams,
you should have always been given a summons or a ticket.

But what`s been happening in the last 20 years is, due to illegal
searches, young people, mostly men of color, are being arrested. And so,
today, I think what the mayor was asking of the NYPD was actually to follow
the law that`s already been passed 37 years ago.

O`DONNELL: They sure didn`t present it that way.

FREDERIQUE: Yes.

(END VIDEO CLIP)

O`DONNELL: They never suggested that, you know, this is really just
following a decision made a long time ago.

FREDERIQUE: Yes, and I think that`s one of the things that advocates
are really looking at -- is understanding that, for the most part, a lot of
these arrests should never have been happening in the first place.

O`DONNELL: And we`ve seen these arrest charts here in New York City
where the use of marijuana is very high among white New York City
residents. They do not bear their share --

(BEGIN VIDEO CLIP)

-- of the arrests. The minority population, wildly, overrepresented
in these arrests on marijuana.

FREDERIQUE: Yes. If the mayor wanted to push forward a progressive
stance on marijuana arrests in New York City, he would have a progressive
stance where it would be the same policies that are associated with young
white New Yorkers, would be the same things that were associated with young
New Yorkers of color -- no arrests, no tickets, no fine.

And I think that`s where we really need to start looking at and
challenging our progressive mayor to look at things that are more based on
the reality, right.

So, let`s talk about the policies around racial disparities and
enforcement. Let`s figure out a way to really provide relief to the
communities that have been under siege for 20 years.

And let`s actually really think about how we want to deal with
marijuana in a way that doesn`t over-criminalize communities and exhaust
very limited resources.

O`DONNELL: Cassandra Frederique, thank you very much for joining us
tonight.

FREDERIQUE: Thank you for having me.

O`DONNELL: Thank you. Coming up, Michael Moore`s defense of Bill
Maher`s recent comments about Islam and free speech. And the editor of a
Danish newspaper who made the decision to publish controversial cartoons of
the prophet, Muhammad, will join me later.

(COMMERCIAL BREAK)

Six weeks ago, when Attorney General Eric Holder announced his
resignation, saying he would leave office as soon as President Obama can
get a new attorney general confirmed, I suggested then that President Obama
would probably choose to nominate someone for attorney general who was
already serving in a position that required Senate confirmation, since
having the Senate reconfirm someone they`ve already confirmed is a very
easy piece of Senate business.

And, this weekend, the President did exactly that. He nominated
Loretta Lynch, U.S. Attorney for the Eastern District of New York, who has
the unusual distinction of having been confirmed for that job twice by the
Senate.

President Clinton nominated her to be his last U.S. Attorney for the
Eastern District of New York in 1999. And she was unanimously confirmed by
a Republican-controlled Senate then.

She went back into private practice in a Wall Street law firm when
President Bush replaced her with his choice of U.S. Attorney, as is
customary for presidents.

When the Democrats took back control of the White House, President
Obama reappointed her to her old job. She was then, once again, confirmed
unanimously by the United States Senate.

Republican Senator Orrin Hatch who voted to confirm Loretta Lynch four
times, twice in the Judiciary Committee and twice on the Senate floor,
wrote this when President Obama nominated Loretta Lynch to be his next
attorney general, quote, --

(BEGIN VIDEO CLIP)

-- "Properly considering a nominee to such a significant position as
Attorney General requires a full and fair process, something that is
particularly hard to do in a post-election lame duck session."

(END VIDEO CLIP)

If Senator Hatch had been inclined to write a more honest version of
that sentence, he would have said that confirming Loretta Lynch is
something that is particularly easy to do in a post-election lame duck
session.

And what makes it so easy is that Loretta Lynch is already serving in
a Senate-confirmed post, which means the onerous job of gathering all of
the paperwork of her life, or financial paperwork and all sorts of other
stuff that nominees have to present for confirmation, has already been
done.

And, in fact, the Judiciary Committee already has it. That is the
single biggest time-consuming chore in the confirmation process -- the
nominee`s own collection of personal documents for scrutiny only by the
committee staff.

The Senators themselves almost never look at that stuff. There is
absolutely no reasonable point in doing another FBI background check on
Loretta Lynch.

But the FBI has conducted many pointless background checks on nominees
and will, of course, waste their time doing another background check on
Loretta Lynch, who is actually the FBI`s boss in the Eastern District of
New York.

But it will be a very, very quick background check. It would be
impossible for the President to have chosen anyone whose FBI background
check could have been done quicker and easier than a federal prosecutor
currently working with FBI agents everyday in a position where she was
unanimously confirmed by the Senate.

The confirmation process has only become long and difficult and
televised in the television age. Prior to the invention of television,
confirmation hearings were extremely rare.

Most Supreme Court justices never had a confirmation hearing and never
had a background check. Most of our attorneys general and other cabinet
members in our history never had a background check and never had a
confirmation hearing.

But in the modern year of televised hearings and background checks,
some confirmations are easier than others. And Senator Hatch has actually
participated in, what I believe, was the quickest, easiest confirmation
hearing in modern times.

It was, as it happens, the first confirmation hearing that I organized
as a chief of staff of the Senate Finance Committee. And it was to confirm
Senator Lloyd Benson as President Clinton`s First Treasury Secretary.

How quick and easy was that confirmation? Lloyd Benson`s confirmation
hearing was held eight days before President Clinton was sworn in to
office.

How quick and easy was the committee vote to confirm Senator Benson?
The committee vote was unanimous, including Orrin Hatchet`s vote.

And the vote was not taken days or weeks after the confirmation
hearing as they do now. The committee vote was taken the same day as the
hearing, and not at the end of the confirmation hearing.

At the beginning of the confirmation hearing, before Lloyd Benson was
asked a single question. This happened.

(BEGIN VIDEO CLIP)

SEN. DANIEL MOYNIHAN (D), NEW YORK COMMITTEE CHAIRMAN: May I say
before we begin our statements and questions, that it is Senator Benson`s
wish that we might have a vote at the end of this morning`s hearing. It
would be a vote --

(LAUGHTER)

I hear the suggestion that a vote be taken now and I -- I think it is
a gracious suggestion.

(END VIDEO CLIP)

O`DONNELL: The gracious suggestion to "vote now" that Chairman
Moynihan accepted was from Bob Dole, the Republican leader of the Senate.
And so, the Finance Committee voted right there, on the spot, before asking
Lloyd Benson a single question.

And they voted unanimously to confirm him, at the suggestion of a
Republican. Then, eight days later, while Washington was watching Bill
Clinton`s first inaugural parade, Lloyd Benson was confirmed unanimously by
the full Senate, and assumed the office of Secretary of the Treasury the
very same afternoon that the President took office.

That is how quickly and easily the Senate can speed through the
confirmation process. Senator Hatch now says that the reason Loretta Lynch
should not be confirmed during a lame duck session is because, quote, --

(BEGIN VIDEO CLIP)

-- "In recent years, the few nominees confirmed to executive branch
positions in a lame duck session were appointed to help staff lower profile
agencies rather than to lead cabinet departments."

(END VIDEO CLIP)

Now, that might be a persuasive precedent for lame duck confirmations
if there was a speck of truth in it. President Bush`s second secretary of
defense was confirmed 95 to two in a lame duck Senate session, just after
Republicans had a bruising election night, in which they lost control of
Senate to Democrats.

But Democrats still allowed the Republicans to run a quick
confirmation process for our Republican president`s secretary of defense.
The most important confirmation process is the confirmation process for
Vice President of the United States.

If a vice president dies in office, he or she can only be replaced by
a confirmation process that includes a vote not just of the Senate but also
a vote by the House of Representatives.

It is the only time the House of Representatives participates in the
confirmation process. That`s how important the replacement of a vice
president is.

The vice president must be nominated by the president and then
confirmed by the Senate and then by the House.

We saw this happen in the 1970s when the Republican Vice President
Spiro Agnew left office, not because he died or was in failing health, but
because he was discovered to be the lowest form of political criminal.

He was facing a stiff prison term for possibly taking bribes. And, in
the end, he struck a plea deal with prosecutors in which he pleaded no
contest to tax evasion.

The House of Representatives and the Senate then confirmed Gerald Ford
as Vice President. Then President Ford, when President Nixon was forced to
resign for his criminality, President Ford then nominated Nelson
Rockefeller to be Vice President.

(BEGIN VIDEO CLIP)

And Tip O`Neill, the legendary Democratic Speaker of the House,
immediately pledged his support and pushed through the nomination in a lame
duck session.

Tip O`Neill, participating in the most important possible confirmation
process for vice president, --

(END VIDEO CLIP)

-- he did that in a lame duck session, so that a Republican president
could have a Republican vice president. The Democratic-controlled Senate
also voted to confirm Republican Nelson Rockefeller for vice president in
that same lame duck session.

So, as Republicans struggle to find reasons and precedents why Loretta
Lynch should not be quickly and easily confirmed in a lame duck session of
the Senate, they haven`t yet found a reason that is actually true.

(COMMERCIAL BREAK)

The National Weather Service has issued winter storm warnings and
watches from Northern Idaho and Northern Michigan. Forecasters --

(BEGIN VIDEO CLIP)

-- predict heavy snow in parts of the Northern Rockies and planes and
the Great Lakes, more than a foot in some places, with temperatures 30
degrees below normal.

The last time a storm of this magnitude hit the region this early in
the season was Halloween 1991.

(END VIDEO CLIP)

Up next, the editor of the Danish newspaper who made the decision to
publish cartoons of the prophet Muhammad, which led to rioting and deaths
around the world.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SAM HARRIS, AUTHOR, PHILOSOPHER AND ADVOCATE FOR THE LIBERTY TO
CRITICIZE RELIGION: Seventy-eight percent of British Muslims think that
the Danish cartoonist should have been prosecuted -- 78 percent.

BILL MAHER, HBO HOST: It`s the only religion that acts like the mafia
that will (bleep) kill you if you say the wrong thing, draw the wrong
picture or write the wrong book.

(END VIDEO CLIP)

O`DONNELL: Last night, Michael Moore posted this in Facebook --

(BEGIN VIDEO CLIP)

-- "Bill Maher asks, `If I draw a cartoon of Jesus in a dress, will
Christian leaders issue a call to assassinate me?` I can`t speak to Bill`s
drawing skills, but it`s safe to say that, in the USA, he can draw whatever
he wants."

"But if you`re a Danish cartoonist who draws an image making fun of
the prophet, well, you are then either shot to death or you are now in
hiding."

(END VIDEO CLIP)

It`s been nine years since the Danish newspaper printed the dozen
cartoons about the prophet, Muhammad. The most controversial of the 12
showed the prophet with a bomb in his turban.

That image sparked violent protests around the world. And, to this
day, cartoonist, Kurt Westergaard, who created that image remains under 24-
hour surveillance and protection because of death threats and a number of
assassination attempts.

Flemming Rose, the editor who published those images, defends his
decision in this book -- "The Tyranny of Silence," writing --

(BEGIN VIDEO CLIP)

-- "I continue to defend our right to publish the Muhammad cartoons.
If I relinquish that right, I also indirectly accept the right of a
proletarian regimes and totalitarian movements to limit free speech on
grounds of violation of religion and religious sentiments. I find that
unacceptable."

(END VIDEO CLIP)

Joining me now, Flemming Rose, author of "The Tyranny of Silence," how
one cartoon ignited a global debate on the future of free speech.

Take us back to those days. When you decided to publish those
cartoons, what did you expect the reaction to be.

FLEMMING ROSE, CULTURAL EDITOR, "JYLLANDS-POSTEN": I expected, you
know, a debate in Denmark about the problems of censorship. But, of
course, I, and I think the vast majority of people around the world, did
not anticipate that this would turn into a worldwide conflict four months
later.

O`DONNELL: And describe what happened. I think a lot of people might
not remember the details of what happened around the world.

These were not just, you know, kind of riots or uncontrollable
behavior you see after some sports teams --

(BEGIN VIDEO CLIP)

-- win or lose a game.

ROSE: You had, every Friday, for, you know, about a month, at least
three weeks, the Friday prayer in the Middle East, in Africa, people taking
to the streets, burning down Danish embassies in Lebanon and Syria.

I think around 150 people getting killed in Nigeria, people getting
killed in Afghanistan, in Pakistan. Fortunately, none in Denmark.

And I think that is very important because all the violence, in fact,
happened in countries that do not have free speech.

(END VIDEO CLIP)

While in countries where you have wide free speech, there was no
violence. And I think that speaks to the fact that if you limit the right
to publish these kinds of things, you will not -- you will not prevent
violence. It`s the other way around, you will, may even, provoke violence.

O`DONNELL: Sometimes, in the public discussion here in this country,
there`s a suggestion that all religions, somehow, do similar things.

And I just want to give one example of something here in New York City
in 1987. I want to put up this picture of --

(BEGIN VIDEO CLIP)

-- Andres Serrano`s work of art that hung in a museum here in New York
City in 1987. It is a photograph that he made of a crucifix plunged into a
vat of Serrano`s own urine.

He entitled it "Piss Christ." And there were protests about that here
in New York City. But Andres Serrano lives comfortably at age 64 today in
New York City. And the government --

(END VIDEO CLIP)

-- of New York City is using his more recent photographs as an exhibit
in the transit system here. You couldn`t ask for a clearer example of what
the difference is between doing something in this country, involving that
kind of imagery with Christ, and what the cost of that is.

The cost of that is nothing in this country.

ROSE: But that didn`t come about, you know, for free. If you go back
to the religious walls in Europe in the 16th Century, --

O`DONNELL: Right.

ROSE: -- clerics were doing the same kind of things that Muslim
clerics are doing now. But because of the enlightenment, because of the
cultivation of religious tolerance and the struggle between ideas and
different religions -- Christianity, the Catholic Church, the Protestant
Church, were forced to accept this kind of criticism and even mockery.

O`DONNELL: And had to adjust the practice of their beliefs in the
process. I mean, we, in this country, were executing witches in my home
state of Massachusetts.

And it was a very long road for Christianity to find its way to
sanity.

ROSE: Exactly. And that`s why, you know, you do not help the Muslim
faith by trying to outlaw this kind of cartoons.

In fact, you stimulate a process of secularization and, you know,
putting religion in its right place, I would say, so that religion does not
determine politics and other walks of life.

O`DONNELL: Flemming Rose, thank you very much for joining me tonight.
Appreciate it. Chris Hayes is up next.

END

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