goo good evening from los angeles. i'm tavis smiley. tonight, a conversation about the new president, the constitution, the state and the u.s. supreme court. we will talk about the reaction after president trump once again insisted that millions of undocumented residents voted illegally. we will talk about the relationship between trump and the press in the first days of this new administration, and we will talk about the prospects ahead for the u.s. supreme court as president trump says he will name a nominee within the next two weeks. joining us for that conversation and more are ucla legal scholar adam winkler and interim dean of uc berkeley law school, melissa murray. then we'll pivot to a conversation with singer-songwriter melissa etheridge about her latest cd, "memphis rock and soul." we're glad you've joined us. all of that in just a moment.

♪ and by contributions to your pbs station from viewers like you. thank you. ♪ so, the third branch of the federal government was not on the ballot in november, but voters shaped its future, to be

sure, for at least a generation, given the way the vote turned out. joining me tonight to talk about the future of the high court and so much more are adam winkler, constitutional law scholar at the ucla school of law, and melissa murray, interim dean at the uc berkeley school of law. and there is so much to talk about tonight. i'm glad to have both of you here. let me start with the news of the day. actually, there are a number of news items that mr. trump has pushed to the front pages today and the next couple days, i suspect. so, first, this comment that he made that millions of illegals voted, and that is the reason why he did not win the popular vote. i'm paraphrasing. that's pretty close to what he said, to which lindsey graham and other republican senators have ripped him to shreds, because it makes a statement about the democracy. and when the president suggests that our democracy was undermined that way, and that's why he didn't win the popular vote, it's not just -- this isn't just somebody talking trash. this is a serious issue. what do you make of that?

>> the first thing i think that was interesting about the statement is that it showed how rattled he is by the idea that he didn't win the popular vote, that he was elected by the electoral college but failed to connect with the majority of the american people, and that clearly rankles. but the whole idea that voter fraud was rampant is really interesting given the state of voter i.d. laws that we've seen over the last ten years. i mean, it's actually harder to vote now. >> pushed by republicans, i might add. >> yes. it's really hard to vote. and certainly harder to perpetrate voter fraud. so, the idea that there's just rampant voter fraud and this somehow contributed to an excess of the popular vote seems preposterous, but again, it's something he really believes in and it lays the foundation for future voter i.d. laws or laws that restrict the right to vote. >> when asked this, mr. spicer, the new press secretary who we all got to know a few days ago with his initial lie to the american people about the inauguration numbers -- when asked about this issue, he said,

and again, i'm quoting pretty close to what he said, that the president believes what the president believes. no facts, no data. the president believes what the president believes. how do we advance, adam, in an era where the president believes what he believes, there's no data, there are no facts, and you are denigrating the way the democracy works? >> well, the truth is, i think it's really going to fall on people like you, tavis, on the journalists, to really call him out on it, to call these lies lies, because that's what they and to be really clear. we've had a lot of studies about voting in america, and we know that the kind of voter fraud, like impersonation and what not, very, very rare. almost never happens. it's just not a very effective way to commit voter fraud, even if you wanted to swing an election. so we know this is just not happening, and we need the media and people like melissa and i will be out here ready to come on and point out these lies. >> speaking of media, speaking of journalists, the problem with that theory is that journalists,

i think, or some of them, at least, are already being frozen by fear when you have a white house that on day one comes out through the press secretary and just tells a flat-out lie. then they send their people out, whether it's mr. priebus or kellyanne conway on the sunday morning shows, and they try to temper the lie to some degree but not call it what it is. so this is rampant inside his inner circle, these lies and the spin. then the president's famously taken after certain networks and certain reporters. the point i'm getting into is whether or not, melissa, you think in the short run we are going to see, you know, reporters who are, again, who are frozen by fear because they feel that these first amendment rights that they are guaranteed are under attack. >> well, i think the whole point -- i think this is a two-fold strategy. one is to have a chilling effect on the free press. and then the second thing i think is to sort of establish a

baseline for trump supporters and others who may be on the fence that the media is somehow illegitimate. so it's sort of a destabilizing effect. when people talked about the sean spicer press conference on saturday, it was sort of funny, like how could he, you know, inflate the number of people at the inauguration or possibly deflate the number of people at the protests. but i don't think that was the issue at pull. the issue is to create doubt in the minds of the american people about what the media says so that when the media does begin to report on more egregious breaches, there isn't the trust that previously existed. so this is a two-fold strategy to, one, chill reporter conduct and free journalism, and two, to establish a baseline level of distrust between the media and the american people. >> yeah, no, i think that's absolutely right. i think we've seen this from the get-go from candidate trump, president-elect trump, and now president trump, just a willingness to state his own facts. and look, even kellyanne conway went on the national news program and said that the president has his alternative

facts. they're actually not alternative facts. they're not true, and so they can't be facts, by definition. so i think it is important that we be out there calling him out on it and highlighting when these mistakes or lies happen. >> no matter what one thinks of donald trump, whether they voted for him or didn't vote for him, hates him or loves him, this is how it begins. the first thing you do, to melissa's point, is that you chill the press. you go after people's right to speak the truth. how afraid should we be? how fragile is our democracy when the president is enacting that two-part strategy? >> i think we should be afraid. i think you already see efforts to not only chill the press and the media, but also anyone else who might speak and obviouses of dissent more generally. there was a public records request of public law professors in georgia who had signed the letter protesting the nomination of jeff sessions to be attorney general. i mean, that's the kind of clear

statement to public intellectuals or academics that dissenting voices will not be tolerated. i don't think it's going to have any traction, but it is meant to make people think twice before they register their dissent. >> so, if that isn't enough, i mentioned earlier, there are any number of lead news stories coming out of the white house tonight because of their behavior. there's a lawsuit that's been filed now that says that president trump is in violation of the u.s. constitution. there is a prominent, bipartisan ethics and constitutional group of experts, including former ethics attorneys for george bush and barack obama. so as i said, bipartisan. the suit has been filed alongside, along with the watchdog group citizens for responsibility and ethics in washington, better known as c.r.e.w. and this lawsuit is basically about my favorite word, emoluments. so, there's an emoluments clause that president trump we're told is in violation of having to do with the various business holdings.

we are told that he has about 500 -- his companies are linked to over 500 entities in at least 25 different countries and that he is, this lawsuit suggests, already in violation of the emoluments clause of the constitution. now, since i didn't go to law school, somebody explain that to me. >> i'll let you talk about emoluments since you can say it better than i can. emoluments. >> you said it quite well. well, there's a section in the constitution that says that no person holding an office of trust or profit under the united states shall receive any present, emolument, office or salary from any king, prince or foreign state. there's not a lot of case law on this, because every president going back to george washington has thought, okay, i need to divest myself of my assets so i can put it in a blind trust, put them in a blind trust so that i don't have any emoluments issues coming to me, but that's not what's happening here. so we're not sure exactly what the supreme court will say, but it's pretty clear that an emolument is any kind of gift that comes to you because of your office, and anytime someone

comes to stay in a trump hotel, for instance, in washington, d.c., so that they can say to the president, i'm staying in your hotel, isn't that great, or i'm holding an event in your hotel so i can impress the president. that's going to cause a potential emoluments clause violation. >> and the whole point of the emoluments clause is again to sort of deter the prospect of corruption of the republic by foreign interests. and again, as adam says, it's not necessarily about outright gifts. i mean, those can certainly be declare declared. but the idea that you are currying favor with an elected official or somehow paying to play with an elected official, to remove any sense of impropriety or appearance of conflict of interest. >> we've already seen these issues arise. i mean, when the president of turkey announced that donald trump had to take his name off a new trump hotel that was opening in turkey after donald trump said we're going to ban muslims from entering the country, it looked like a real problem for

donald trump. he came out after that and complimented the president of turkey for cracking down on dissidents, and next thing you know, the president of turkey was like, okay, you can put your name back on it. now, did donald trump do that, support that turkish president to support his own business interests or to support the national interests of the united states? we shouldn't have to ask that question, and the framers didn't want us to ask that question. >> let me make a bold prediction -- a not-so-bold prediction, really -- that this president is going to be sued more than any president in the history of the country. true or false? there will be more lawsuits filed against him, against his administration, than any presidency. would you take that bet? >> we have a lawsuit on day one. why not? >> look, and he'd be bragging about it, too, donald trump. i've got more lawsuits than any other president in the united states, but i think that's right. and i do think his unwillingness to divest or put his assets in a blind trust, he really seems like he's unwilling to make any concession in that regard, really. i think it's going to be a continuing problem for him.

it's going to be an open wound that will cause more and more scandals to arise. >> right. >> i think adam's exactly right. he may be the most-sued president in history. he won't care. i mean, for the same reason he has been excoriated for refusing to disclose his tax returns, and he doesn't care. and so, this isn't business as usual. this is not normal politics. >> and then there is, of course, the big issue, as if these issues aren't already overwhelming. the big issue, which will come in a week or two, we're told, is his supreme court nominee to take the seat from the deceased justice antonin scalia. we all remember merrick garland was nominated. that really went nowhere. republicans said we're not going to take it up. they kept true to their word. they did not take it up. so, president trump has won, he gets to put somebody in that seat now. what do we make of what the process will look like? >> it's interesting because i was on the show maybe a year ago and we were talking about the death of justice scalia and what might happen. and as it turns out, nothing really happened because there was gridlock and obstruction and

a nominee was put forward, but no action was taken on that nominee. elections have consequences, and one of the consequences is that the president gets to nominate his own prospect for the supreme court. and i think three names have been floated -- judge hardman from pittsburgh, bill pryor from alabama, and of course, gerris yu gurs yuch from alabama. all are conservative judges. i think there will be pressure on president trump to pick the one that can garner some bipartisan support. but i think what is interesting about this is that none of these judges could reasonably be called moderate. they are actually quite conservative in their judicial philosophies. what's actually different, though, is that the baseline of what's acceptable now seems to have moved so far. so, my pick would personally be for a neil gorsuch, because he really is a great judicial craftsman. he writes really interesting opinions. he's sort of an texturalist in the scalia mold and seems a good

replacement for justice scalia. bill pryor has a long history of acting against lgbt rights as attorney general, against abortion, women's rights, things of that nature. so i think he'll have a harder road to ho at nomination, but neil gorsuch seems like someone everyone can get down with, and that's really interesting because i don't think that's where we would have been a year ago. >> chuck schumer, democrat of new york, of course, who is the minority leader, has already said that the democrats will oppose anyone who is put forth who is outside of the mainstream. and to your point, i'm not sure we know where the lines are anymore, adam, in terms of what a mainstream candidate would look like. if merrick garland doesn't fit that, nobody does. >> that's right. merrick garland was very much a right down the middle kind of guy. but it's different. politics has shifted. thoughts have shifted to right. i don't know that americans' attitudes have shifted to the right, but the people elected as president and in congress clearly have shifted to the right. and as a result, we'll have in one sense a supreme court that

continues the old supreme court. we're replacing scalia with another real conservative, so it's going to be a continuation of the court in some ways, but we should recognize that we were really on the verge of having a supreme court with a liberal, democratic-appointed majority for the first time in 50 years, and that was a stolen seat, i think, by the senate republicans. and the question's i think really for the democrats -- how did they play hardball as effectively as the republicans have? >> yes. >> that to me is the question. and since the election, where has the democratic party been in terms of leadership, and how are we going to go forward thinking about how do you respond to this? i mean, like madonna coined it best, but where's the party in all of this? he's talking about building a wall. we haven't even begun to build a bench of future leaders, future people to run against for some of these seats. and if we don't do that, we're not going to be able to flip the courts in the next few years. >> here's the last question. i'll give it to you, melissa, which is how long before she

regrets and how long moreover before we regret that ruth bader ginsburg did not step down a little while ago? >> i think there are die-hard ginsburg fans who think it's her right to stay on the bench as long as she feels -- >> it is her right. >> it is her right. >> she's a notorious rbg, but -- >> this was a lost moment. there was a great chance for her to have been replaced by someone who would have been her ideological heir. and you know, i really hope she is working out with her trainer, because we would really like her to stay on the bench for another four years. >> on that note, i say amen, i'm getting out of here. adam, melissa, thank you for coming on. up next, melissa etheridge with a new project. stay with us. please welcome melissa etheridge back to this program. over the course of her nearly 30-year career, she's won an

oscar and two grammys. her latest project, "memphis rock and soul," is a tribute to the original label that debuted at number one on the billboard blues chart. she's touring for the project and patrolmromoting it across t country. i'm glad she made it home for a couple days to talk to us. melissa, how are you? >> i'm doing so well, really, really well. >> happy not so new year at this point. >> we're in it. we're in it. >> 30 years, almost. you're just a few months away from that. >> yeah. >> does it feel like 30 years? >> no. well, you know. at this point we're just doing it. we look back and go, oh, my gosh, i've been doing this 30 years. it feels a little better because i think 30 years ago i was -- there's more fear involved and a lot of unknowing. and now it's just, i'm digging it. i like where i am and i love making the music. >> yeah. when you're 30 years in and you're still putting out new projects, how do you go about figuring out what that sounds like, what that's going to be? because i mean, music is so, i

mean, the river runs deep. >> yes. >> and yet, every project has to be different from the previous project, and you've got to keep giving your fans stuff that interests them. how do you feel that out three decades in? >> i figure, if something moves me, if i love something, if i'm looking at something going, i can't wait to sing this, then my fans are going to respond to that, because they -- i write like that. i write from what is in my heart, what i'm feeling, and i give that to the fans, and they really responded to this album. they love it. >> so, obviously, timing is everything, as they say. >> yeah. >> why was the timing right for you at this stage in your career for this project? >> well, after 30 years, i have been writing songs, singing songs. i wanted to go pay tribute. i wanted to dig deep into my inspiration. i wanted people to understand that, yes, i'm a rock 'n roll artist, but my roots go back into the soul music, into r&b.

i mean, that's -- so much of rock and roll is part of that. and this just thrilled me. otis redding. this is -- i went down to memphis, and out of memphis came such great music at the time. and the opportunity to sing "i've been loving you too long," which is as far as i'm concerned the greatest song in the world, it excited me. so i just knew that my fans would love that. >> yeah. for all the r&b and all of the soul that you could have dug into -- i mean, it's hard to argue with the stax catalog. we'll talk about that in i moment, but that's basically what you've done here. it's hard to argue with anything in the stax catalog, god knows. but of all the soul you could have tapped into, what is it about the sound of stax as opposed to some other label that really -- >> when you look at the history of stax and realize what was going on -- this was the late '50s, early '60s, this is the late '60s and early part of the

'70s -- they were the only interracial studio and only interracial place that was making music. it was beautiful. you talk to any of them that were doing it back then and they said once you walked through that door, race was not an issue. booker t. and the mgs were black and white. the writers were black and white. the owners were brother and sister. and then the guy who ran it was black. it was beautifully, perfectly balance balanced company at a time when that was not happening anywhere. and to go back in and feel the soul of that, feel the place that that met -- no other place met like that. you had motown that was doing its thing and atlantic, which was certainly soulful, but stax stood on "its own and had a rea civil rights history to it, too, that i really loved and wanted to find a piece of that. >> so, the stax catalog is massive. >> yeah. yes, yes, it is. yes. >> and you have 12 tracks here. >> yeah. >> i would love to go through

the process of how you got through hundreds of songs -- >> hundreds. >> hundreds of great songs down to 12 tracks. >> i was listening, and everywhere i went i would listen to songs and i would -- if something would -- i knew the ones that i knew i wanted to do. you know, "i've been loving you too long." i knew the otis songs i knew. i could have done a whole lot of them. >> otis redding, yeah, yeah. >> but it wasn't that i wanted to do the most popular ones, because i didn't. there were some that i felt had been done and redone well, and i didn't want to touch that. i even recorded a song on there that the people at stax -- i found one person that remembered this woman. her name was barbara stevens. she had one hit -- wasn't even a hit -- it was called "wait a minute," but it rocked so hard and it moved me, and i wanted to make the music. that was my criteria. hey, what song can i -- oh, i can't wait until i play that or sing that. that was the criteria. and it took a long time. i got it down to 50, then about

20, then went into the studio and recorded 17 and ended up with 12. >> that track, "wait a minute" notwithstanding, most of what you've done here -- and i prefer to use the word interpretation than even covers. it's your interpretation. >> thank you, yeah. >> so, but most of what you've done here comes from male voices. >> yeah. >> how do you approach not that music has to be gender-bound, obviously, but when these songs have been such big hits and we know what sam and dave sounds like. everybody's done that. hold on, i'm coming. i mean, there's a sound to that. >> yeah. >> with your voice, how do you approach these songs these men have put their own -- >> well, i really came from the place of i'm a rock 'n roll singer. i'm a singer. and i'm also a person that i'm going to put these in the place where i can sing it. i came to some songs and i came to the gender pronouns and went, well, i can't really change it,

because then that's not true. i can't say he, because that's not true. and i'm hoping that in 2017 -- you never know -- in 2017, that people can understand that whatever pronoun, they can make it whatever they want. >> sure, sure. >> so, to make it truthful to myself and able to sing, i used the same pronouns, so i switched it up to where it was for me. >> yeah. since i mentioned sam and dave "hold on i'm coming" -- >> yeah. >> that obviously made the cut. what is it about that song that -- >> okay. "hold on i'm coming." you understand that isaac hayes and david porter wrote this song and the story that -- i heard stories about -- i've heard so many stories. we used to -- i would sit down with the musicians, and an hour before we ever made music, they would just sit and tell me stories. they were amazing. and they said, well, you know, the way they got that was isaac was playing the music and dave had to go to the bathroom. and isaac's like, oh, i think i got it, i think i got it! and dave's like, hold on, hold

on, i'm coming! and wait a minute, that's the name of the song! so, that song, the history. >> yeah. >> and i got to actually sing it with sam. >> oh, yeah. >> he was down in florida with me and he came up, and just -- i thought about doing it as a duet, but then i just sang it and went, that's just a great rock song, and that's what so many rock artists did in the '60s and '70s was take the soul music and rerecord it. i mean, the rolling stones have done that many times in the past. >> many times. when you are in the studio, you're taking on one of these tracks, what's your philosophy about how you go about interpreting a song? >> well, it has to go through my heart. it has to go through -- there's words and there's music and there's rhythm. i find it to where i can sing it truthfully and feel it. that's where i come from. >> well, these songs rock and you rock. >> thank you so much.

>> so it's a marriage made in heaven, as they say. >> oh, thank you. >> the new project from melissa etheridge is called "memphis rock and soul." you can't really see it on the screen here. leave that up, jonathan. you can't really see it on the screen here, but i love how you play off that "me" in memphis. >> oh, it's melissa etheridge. >> you guys got that. there you go. very nice. like i said, a marriage made in heaven. it's great stuff. if you don't have it already, add it to your collection. another fine piece of work from the one and only melissa etheridge. >> always a pleasure. >> have a great rest of the year. >> you, too. >> that's our show for tonight. thanks for watching, and as always, keep the faith. for more information on today's show, visit tavis smiley at pbs.org. hi, i'm tavis smiley. join me next time for a conversation with academy award-winner matthew mcconaughey. that's next time. we'll see you then. ♪ ♪

a and by contributions to your pbs station from viewers like you. thank you.

good evening from los angeles, i'm tavis smiley. conversation with cornell william brooks who is here to discuss president trump's cabinet picks as well as the the ongoing fight for civil rights in the age of social media activism. and then, charles eisenstein, scholar, author, joins us to talk about why this time of political uncertainty presents an opportunity for empathy to drive a new political story. we're glad you joined us. those conversations coming up in just a moment.