mentioning football. i know we have our differences about these things, so thank you, my friend. >> i won't even mention it. >> well-done, my friend. >> good night. >> thanks for your help joining us at this hour. yes, i'm in massachusetts tonight. i wonder why. yes, i'm very excited about what happened yesterday with the patriots but i will not let you suffer with me gloating over it. there you have it. we have just heard from a federal appeals court on the west coast about whether the trump refugee ban and muslim ban is going to be allowed to come back to life and whether it will continue to be blocked by a federal judge's order. that appeals court, the u.s. circuit court for the ninth circuit, they set a deadline tonight, a deadline of tonight

for the government to make its legal filing to present its next case. the moments after that deadline passed, they announced there will be a hearing tomorrow at 6:00 p.m. eastern time, 3:00 p.m. on the west coast, 6:00 p.m. on the east coast. that means this time tomorrow, we will likely know whether the refugee ban and the muslim ban is still staying dead or if it might come back from beyond the grave. there's been so much visible protests. there's been such wide-scale civilian resistance and organizing against trump, i think it's been easy to focus on that as the counter veiling force with which the trump administration is pushing but now this is the first time that the judiciary has given this new administration a shove and pushed it way back. again, the big hearing in this case is tomorrow. we just learned tonight that the hearing is going to be live-streamed when it happens, which is going to be fascinating. in just a moment on this show, we'll speak with the blue state attorney general who brought that case in the first place. we'll hear from him directly as

to what he expects from that hearing tomorrow and where he thinks this very big, very important case is going. so that's all ahead. while we await that interview tonight, while we await that hearing tomorrow, we have also just had one of the strange guest pieces of reporting we have yet had on any subject about this new administration. and that's what i want to lead the show with tonight. this is not something that the new president tweeted, this is not some blatantly false and inflammatory thing said in the white house briefing room or said by one of his surrogates. what we're going to focus on tonight at the top of the show is something that the white house has reportedly done. even though they haven't talked about it. it's being reported independently by the associated press about the administration even though they've said nothing about it. i'm starting to feel like the best way to cover this administration is to treat them like they are a silent movie.

they've got a problem all the way up to the very top of saying stuff that isn't true and so that can be every day's news story but there's also responsibility to focus on the bigger stuff that they're doing, to not be so distracted by the things they say, because that could send you down 40 rabbit holes a day to figure out the statements of the administration and the reality of the lived world. it's important to catch them on their misstatements and point them out but if you spend all of your time trying to nail down their words following every statement that they make as your next news story, not only do they get to lead you by the nose in terms of what you cover, sometimes for all of the attention to what they are saying, you miss what they are doing. so this administration isn't very old yet. we're 2 1/2 weeks in. as each day goes by of this new administration, i feel like in terms of developing my understanding of what's important, explaining what the

real stuff is that's happening, you know, it's not a distraction of what is really going on, i feel like i'm getting more and more focused of reporting about their behavior rather than focusing on comment or amplification of things that they said. so i just want to tell that you as a matter of transparency, that's where i'm coming from on this, that's where my news sense comes from on this and now, please, check this out. this man is often described as europe's last dictator. he has been in power in his country since 1994. 23 years and counting. and one of the ways you know that somebody has gotten comfortable being a dictator is that when he announces he's given a press conference, what he actually does is then get up in front of the press and speaks for 7 1/2 hours without notes and without a break and without interruption. 7 1/2 hours. that happened in belarus on friday night. 7 1/2 straight hours from the president/dictator of that country. and you know what, in our country, we have had all this

furor and all of this protest and all of this ferocious legal argument over this travel ban put in place by our new president. we know what a policy like that does and the great political consequences. this entrenched dictator in belarus, he just one-upped us in his country. what he announced last month is that people from more than 80 countries can now visit belarus, can now travel to his country without even getting a visa. so you don't need any government permission. you don't need to notify the government that you're coming. you can just show up. just be here. you're fine. welcome. and the reason this has caused a

very specific kind of freakout over there is just to the immediate east of belarus, looming over them in everything they do is their giant overbearing neighbor, russia. and russia is freaking out about this plan by belarus that they are going to let in people from all over the world because that is right on russia's border. this new policy in belarus applies to countries from the eu countries and they can come without a visa. if belarus says come on in to people from all of these countries, more than 80 countries from around the globe, that would mean that people from all of those countries could waltz right up to russia's border and so queue the russian freakout. russia has responded by threatening to militarize the border between russia and belarus. they are going to let americans and europeans and all of these people in, we are going to put up barbed wire. russia has threatened to cut off the oil and gas supply to belarus and the president in his 7 1/2 hour press conference, he said that belarus absolutely

they would figure out some way around not getting any more oil or gas. nobody believes that's necessarily true, that they could survive it, but it shows you that he's worried. in fact, a lot of what he said that was designed to reassure people that it was going to be okay ended up doing the opposite. the associated press quotes him saying, "there will be no war, no one will occupy us. no one will send in troops." and i'm sure he meant that to be reassuring but it's not reassuring to hear that from your country's leader, right? don't worry, there's not going to be a war. nobody's invading us. scarier words were never spoken. so this is what russia does, for a long time, right, since the collapse of the soviet union and all of those things that used to be part of the ussr instead of becoming independent countries on the eastern edge of europe, russia has spoke about its

defenses. this is what drives them all the time. they feel like they are surrounded by nato, encroached upon by the european union and courts that ought to be in their orbit, countries that used to be part of the ussr, countries are constantly being pried off and turned toward the west instead further isolating russia. and sometimes these concerns turn into war in recent years. russia has invaded georgia, ukraine, and countries that russia wants to stay in its orbit are constantly being threatened by russia, that she have to stay in russia's orbit or else. you like your oil and gas? want to keep getting it? shame if something happened to it. a country turning towards the west, they do what they can to drive a wedge between those countries and whatever western influence is so appealing, whether it's the european union or the united states ornate toe or what have you. and sometimes these things, as they said, they do become war but more often it's these subwar level fights and conflicts and

simmering weirdo standoffs and i mean it when i say weirdo because before this fight they are in right now, for example, over people from all over the world being able to go to belarus, there was a big round of tensions between russia and belarus because russia said simmering weirdo standoffs and i mean it when i say weirdo because before this fight they are in right now, for example, over people from all over the world being able to go to belarus, there was a big round of tensions between russia and belarus because russia said belarus violated its ban on importing western foods. when the united states and european union and western countries put sanctions on russia, they said we're not going to import any russian foods and belarus violated that ban and that was a truly weird one where russia ended up doing these photo-ops where they burned up piles of good food and drove tanks over boxes of fruit and cheese and made a big show of crushing frozen geese.

it was really weird. there was also that time when this was when russia was pushing to build a military base in belarus, even though belarus did not want russia to build a military base there. it's always something with these guys. and in the past, to press their advantage, russia has mostly resorted to threats. that's what they are best at. they have also used propaganda and information warfare to try to fight these weirdo fights that they have along its western border. again, they sometimes become war but they sometimes simmer and become war conflicts. the propaganda outlet floated the idea that belarus was about to be invaded by the west. they faked up this news story that russia was desperate for protection because poland, yeah, poland was going to invade belarus. and that's insane. poland is a nato country. they are an they faked up this news story that russia was desperate for protection because poland, yeah, poland was going to invade belarus. and that's insane.

poland is a nato country. they are an eu country. yes, poland is as nuts as any country but poland is not invading belarus. but that's, of course, the kind of thing that sputnick would come up with, that putin pumps out whenever he needs to. this was a well-positioned propaganda to rattle the 75% of belarusian citizens that speak russian. the west might invade at any minute. look out, here comes poland. it's ridiculous. it's ham-handed. poland is not going to invade belarus. but this is what russia does. i'm glad we don't have to deal with anything like that, right? so here's the thing. the associated press has a story out today on the new administration and how they are having a hard time getting it together on national security

and foreign policy stuff, the muslim ban debacle, the botched calls to friendly foreign leaders, that kind of things. but towards the end of this story, they say, "according to one u.s. official, national security aides have sought information about polish incursions in belarus, an eyebrow-raising request because little evidence of such activities appears to exist." and by little evidence of such activities, they mean no evidence besides russian propaganda and get russia's way into that country. the a.p. reporter clarified a little bit on twitter saying, "it was senior people, senior aides in the trump administration who asked for this information on polish incursions into belarus.

when there have not been polish incursions into belarus. except in raw ham-handed really obscure propaganda that you wouldn't stumble upon because it's been repeated a lot in your facebook feed. you would never come across this except in this raw propaganda that russia pumps out through its state-run media challenges, like rt and sputnik. that's the only place that stuff like this is trafficked. why are sure general national security aides from the trump administration inquiring about it? hey, top trump national security officials, hey, general michael flynn, national security adviser, what are you guys reading these days? where are you getting your stuff from? and general flynn, while we're on the subject, is it true that

you are rewriting the president's daily brief from the intelligence community every day because you know better than the u.s. intelligence community? what are your sources? where are you getting your info from? i mean, this is really strange. this is like -- this is like a sitcom where you're trying to figure out which of your friends have been gossiping about you so you give all of your friends a different salacious, fake secret and tell them not to tell anyone and one of those fake secrets that starts circulating tells you which of your friends has been betraying you. it's like this is a ridiculous plot except in this case it's the national security council and the secret to figure out what they are working on is apparently what russia has been blasting out as propaganda that has no connection to the real world, to real american national security interests or even to real news. i mean, sputnik tv should not be the rosseta zone of the national security council in the white house. but honestly, what else explains this? i mean, the russian intervention into our presidential election is still not explained.

the russian -- excuse me. in the house and the senate, they are sort of just waking up, yawning, just thinking about trying to get around to maybe start fillinging that out sometime soon. they are putting the russia back into don't rush me. but as long as that russian intervention in our election remains unexplained, uninvestigated, unpunished, not to be weird but that means there is also an open question of a potential russian government penetration into the trump campaign. and into what is now the trump administration. poland is not invading belarus. the a.p. is reporting that the top level national security aides to this president are inquiring with u.s. agencies about those polish incursions into belarus. why the heck are they pursing

that as a line of inquiry in the trump national security council? democrats last week asked for an investigation into payments from one russian state media outlet from rt to michael flynn. michael flynn was reportedly paid a lot of money to atentd an rt dinner in moscow where he sat with vladimir putin. that was in december 2015. we have the photos to prove that he was there. at that point, michael flynn had met repeatedly with candidate donald trump and was set to endorse and join his cam main. as a recently retired flag officer democrats claim it may have been illegal for flynn to have taken that money for that moscow appearance even though he was no longer in uniform when he did so. democrats have asked for an investigation into that. maybe that thread will unravel some of this. and maybe the fbi really is investigating ties between the trump campaign and the trump administration and the russian government. the fbi is not confirming or denying whether that investigation exists but multiple reports have been that it does. maybe it does exist and maybe

that will shed some light. but there is something weird here. and if you tune out what they say and you just watch what they do, this kind of thing stands out. why the heck are they doing that? right? i mean, "the new york times" reports today that president trump did not know, did not understand, he was not properly briefed on what he was doing when he signed an executive order putting steve bannon on the national security council. think about that for a second. what's worse, the fact that he put steve bannon on the national security council or that the president did so unknowingly. somebody is putting things in front of him to sign and he's signing them without knowing what they are. which is worse? there's good reason for all of this focused reporting on whether or not the trump administration knows what it's doing. but sometimes i think what otherwise feel like random misfires by them or business

bizarre priorities from them may not be evidence of incompetence and chaos. sometimes it's worth tracking it back to its origin to find out where it's coming from and in this case it appears in part to originate in another hemisphere. this is a very creepy development that needs explaining. we'll be right back. i will admit, it's kind of a weird question to ask. of course he thinks he will win. now i'm glad i asked it because it's helpful to know why he was so sure that he would win. >> what do you think the chances are for a nationwide stay based on your arguments? >> well, let's put it this way, rachel. this is a very creepy development that needs explaining. we'll be right back.

i will admit, it's kind of a weird question to ask. of course he thinks he will win. now i'm glad i asked it because it's helpful to know why he was so sure that he would win. >> what do you think the chances are for a nationwide stay based

on your arguments? >> well, let's put it this way, rachel. i would not have filed this litigation unless i was confident we would prevail. in a courtroom, it's not the loudest voice that prevails. it's the constitution. bottom line is, this executive order is constitutional and we are confident that a judge here in the western district of washington will agree and we are optimistic, we'll grant that restraining order as well. >> that was one week ago today. washington state attorney's general bob ferguson expressing confidence that they will prevail in the refugee and muslim ban. and then on friday night, bob ferguson did win. the state of washington at least won the first round when a federal judge in seattle granted a temporary restraining order effective nationwide halting the implementation of the trump ban. now, the federal appeals court for that part of the country has held a hearing for 3:00 p.m. west coast, 6:00 p.m. east coast. it's going to be streamed live while it happens.

at least until the website of the ninth circuit court of appeals inevitably crashes because of fantastic and indeed international demand to hear what is it going to happen in that case and what is either going to go down in history as the first most radical policy of the administration or the first time the federal courts took a look at this new president's policy agenda and said, no, no way, no how, not as long as we have this constitution. joining us now is, once again, bob ferguson, washington state attorney general. mr. attorney general, thank you for being with us tonight and congratulations on your early wins in this case. >> thank you so much. it's great to be back with you, rachel. >> so we know that the judges are going to be holding this hearing tomorrow. 30 minutes on each side.

what do you expect and where would you describe yourself and fellow plaintiffs in terms of where you think you are at in the trajectory of this case? >> i think things are going precisely as we had planned when we set a course to litigate this fundamental constitutional matter. so we prevailed before a federal judge appointed by george w. bush. that's now under review and. >> one thing that is providing news coverage is not just what is happening in terms of the ban being stopped and people now getting back into the country in those airport reunions that we saw happening over the weekend and into today in addition to that on the ground reporting, we're also seeing a lot of interest in the friends of the court briefs that were filed here. very, very high-powered folks joining on here. 100 tech companies, 16 attorneys general, a lot of very high national security officials, including the former secretary

of state john kerry. how important is that kind of support that you're getting from other parties? >> i think it's critical, rachel. i think it shows how important this issue is that you get that kind of support from, as you mentioned, 100 tech companies. we're talking microsoft, apple, google. and from the national security standpoint, critics of the lawsuit pointed to that as does the president. a bipartisan group of national security experts, including george w. bush filed support of my complaint and motion before the ninth circuit court of appeals. i think it goes to the heart of the case and will speak as we move forward in this process. >> are more states going to be joining on your side of this lawsuit? >> i don't want to get ahead of my colleagues but we welcome the additional states. some states want to bring their

a more radical way, would you expect the kind of on-the-ground chaos we saw when the ban first went into effect last weekend? >> that's a good question and hard to predict. i guess what i could say is i've seen firsthand the impact. i was out at sea-tac airport to greet folks coming from countries like iran and somalia to the united states who had been rejected and turned away previously so i know how deeply

personal folks around the country feel about it. at the end of the day, i'll use all the tools i have to make sure the constitution is upheld and to make sure that no one is above the law and that includes and especially includes the president of the united states and that's really what is at stake with this litigation. >> bob ferguson, washington state attorney general, thank you, again, mr. attorney general. keep us posted. >> thank you very much. still ahead tonight, the latest sign that being an elected official is a much louder and far more interactive endeavor than it was just a short while ago. wow. nice. strength and style. which one's your favorite?

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do you see these pictures over the weekend? this was romania over the weekend. look at that. that is not a celebration. romania only has about 20 million people. a considerable proportion of those 20 million people turned out in the streets to protest against their government this weekend. what's going on there is that the head of the leading political party in romania, he's banned from being prime minister because he has a corruption conviction and because he's facing trial on another corruption charge. and to deal with that problem,

his ruling party last week went into an emergency session late at night and passed a law that proclaimed that corruption is no longer a crime. seriously. they decriminalized negligence in office, abuse of power and conflict of interest. they decriminalized corruption. and that night, even though they did it late at night, 10,000 people showed up in the streets that night and then the next night it was more like 100,000 people and then by last night, the fifth straight night, it was hundreds of thousands of people in the streets. they took five days of these massive demonstrations and the government caved. they have now announced that they are rescinding their law that made corruption legal. protests sometimes works. this is republican congressman tom mcclintock trying to have a community meeting in his california district. this is what it looked like. facing his constituents. this was lincoln, nebraska, constituents unhappy with republican senator deb fisher demanding that she meet with them and talk about her votes for the trump cabinet nominees. this was illinois republican congressman peter roscoe.

look at this crowd that met him at one of his community events this weekend. they are saying meet with us, meet with us. at one point, they switched to 2018, 2018. not so veiled threat. they said, hey, peter, we vote. protests work. not every time but sometimes protests work. and tonight a different kind of protest is going to be working all night in washington, which is all the more remarkable because these are some of the least likely people to stay up working on anything, no offense. you know, but even when they not every time but sometimes protests work. and tonight a different kind of protest is going to be working all night in washington, which is all the more remarkable because these are some of the least likely people to stay up working on anything, no offense. you know, but even when they hold a filibuster, u.s. senators don't usually stay up super late actually talking. tonight, though, senate democrats say they will talk all night long if they have to and it looks like they'll have to. democrats are holding the senate floor overnight tonight to talk about the one cabinet nomination they seem most bent on derailing at the moment, the one where they are closest. tonight, they are within a single vote of stopping the nomination of betsy devos to be education secretary. democrats are all opposed to devos. a couple of republicans have

pealed off already. lots of other republicans have been under tremendous pressure in their home districts and on their washington phone lines and again today outside the capitol in d.c., lots of republicans facing pressure to vote no on devos. so they are putting on inside the system pressure to get this nomination blocked. they are now an hour ten holding this. they need one more republican to vote "no" on betsy devos and her nomination will be tossed. one vote. that's all they need. they are that close. hold that thought. stay with us.

you are supposed to vet potential high-level nominees in private so they don't end up getting vetted in public where it counts and tends to stick. for example, the trump administration's pick for army secretary. he's a former army ranger turned trading firm billionaire, vincent viola. and then up pops the news that he was accused in august of punching someone out at a very fancy racehorse auction in saratoga springs, new york. this was public information. how come the white house didn't know about it? then it turned out that his financial holdings were so complicated that he says it will be impossible for him to divest from his holdings, which apparently is just fine for presidents these days but not for army secretaries. so on friday, after the close of business, after he had already

accepted the nomination weeks and weeks ago, vince viola withdrew his name from consideration. and then the president's pick for labor secretary, it puzder. old claims about spousal abuse that he and his former wife rebut but buried no deeper than a cursory googling. he also faces difficulty with divesting. tonight, puzder revealed that he and his wife employed an illegal immigrant in their home for years. the trump administration didn't figure it out themselves. did i mention that what he's nominated for is labor secretary? puzder has seen his nomination

hearing postponed four times now. it's my guess he will never get one. there's also president trump's pick for secretary of health and human services, congressman tom price. his nomination has been delayed over concerns about him having conflicts of interests, him repeatedly buying stock in health-related companies and then writing legislation that boosted the value of the stock of those companies. congressman price has denied doing anything improper but the longer democrats drag this out, the more damaging headlines pile up and they all seem to be sort of of this stripe. his wife is a georgia state lawmaker and she's been

accepting campaign donations from health companies during her husband's pending nomination to be health secretary. just one of these many conflicts that tom price is dragging around would likely have been more than enough to sink anybody else seeking a cabinet position into any other administration. the main reason that his nomination might still actually have a chance tomorrow in the senate is just because there are so many other distracting nominees with terrible problems to tackle, like, for example, betsy devos, the nominee for education secretary. senate democrats, as we reported earlier, are right now holding the floor for a full 24 hours all through the night in opposition to the devos nomination. they say she's unqualified for the job. and after a rigorous confirmation hearing did not go well for her, democrats have an argument to make about that. if nothing else, she will be forever remembered for plagiarizing some of her written responses to democratic questions. did i mention she's the nominee for education secretary? she will also, of course, be remembered for saying that we should allow guns in schools for, quote, potential grizzly bears. potentially. it's hard to imagine that the trump administration expected this kind of public drawn-out embarrassing vetting after they had already supposedly vetted her but it urn its out this new

administration is terrible for vetting people for all kinds of jobs at all levels. they might even have turned out to be terrible at vetting their supreme court nominee. this is the one they thought was going great. it might not be going great anymore. that's next.

the new president last week enumerated the qualities he said he liked about his supreme court nominee judge neil gorsuch. nice qualities and his qualifications.

>> while in law school, he demonstrated a commitment to helping the less fortunate. he worked in both harvard prison legal assistance projects and harvard defender's program. >> he worked at both the harvard prison legal assistance program project and the harvard defenders. for a very, very, very conservative nominee, having that kind of big-hearted pro bono work on your resume, that kind of volunteer work, that can really, you know, soften your image, right? both of those programs, again, the harvard prison legal assistant project and harvard defender's program, provides

help to the poor, both of those affiliations were listed in judge gorsuch's biography when nominated to the bench in 2006. when you are nominated for a federal appeals court, you get a really good vetting. it's a really big deal but it's an order of magnitude different to be nominated for a seat on the united states supreme court. did the trump administration do any additional vetting of judge gorsuch above and beyond what the bush administration did for that appeals court seat 11 years ago? specifically, was all of this biography accurate? today, "the wall street journal" reports on that paper's struggle to corroborate involvement by judge gorsuch in these two harvard volunteer programs. "roughly three dozen students who participated in the two programs while mr. gorsuch was at harvard law school from 1988 to 1991 said they had no recollection of his involvement. "wall street journal" includes quotes from classmates who say things like, if he was active in the legal acities stance project, i am sure i would

remember him. "wall street journal" also says that while involvement in the groups was voluntary and only loosely monitored, judge gorsuch doesn't appear, for example, in the yearbook photos of either group, nor is he listed among the members not pictured. now, the white house has pointed the journal to one person who says judge gorsuch was involved in one of the programs. this person says this, exactly, i'll read it directly. "what i am prepared to do is corroborate that neil gorsuch was in the harvard defenders. i have a specific recollection of talking to him about one case but i don't want to go into the details. i'd like to leave it there." he would like to leave it there. now, to be fair, judge gorsuch may very well have been an active participant in both of these big-hearted effective groups at harvard law school. for all we know, these were formative experiences for him, just as we have had described to us by the white house. but democrats are already saying they are going to put up the biggest fight possible against this nomination. mainly on the grounds that republicans stole the supreme court seat by refusing to consider president obama's

nominee for the whole last year that he was in office. that has been the framework of the fight so far but if the nominee also has certain holes or certain questions in his resume, stuff that can't be corroborated more fully than this and in fact lots of people say he wasn't there, well, that could change not just the way democrats wage this fight but it could change the substance that they are fighting on. joining us now is senior editor and legal correspondent for a magazine. >> hi there, rachel. >> so i have been feeling like judge gorsuch nomination from the democratic point of view is mostly going to be a fight about whether or not the republicans should get away with never giving a hearing to merrick garland and holding that seat open for so long, whether it's okay for donald trump to appoint anybody to the seat. are things changing now with these kinds of questions being raised by "the wall street journal" that there may be a

more substantive type of fight over judge gorsuch himself? >> rachel, i'm going to do something i never do, which is push back a little on this and i think that, you know, this question of was he in this group or that group and, question of w group or that group, was this >> rachel, i'm going to do something i never do, which is push back a little on this and i think that, you know, this question of was he in this group or that group and, question of w group or that group, was this misrepresented? these are the kinds of questions that seem to me hung up the alito confirmation hearing. we had a big fight about whether he was a member of a group at prin princeton. i feel as though the first thing you said is so true, this is a referendum on norms, this is a referendum on a stolen seat and i always feel that these questions about are you a good person as represented by, you know, these handful of behaviors, never goes well. i've learned to call it the sort of cardiologic model of confirmation hearings, what's in your heart, are you a good person, get out the pet scan, get out the cat scan. i don't find an enormous amount of utility in this inquiry, in addition to the fact the seat has been stolen, i think we have a existential question about presidential powers and whether

there can be an independent judiciary that acts as a check on the president. so to me while this is interesting and sort of, you know, worth pursuing, boy, i hope this is not the main event at a confirmation hearing that might be the last best chance to talk about an independent judiciary and donald trump. >> i'm going to push back on your pushback because we can do that here among friends. the thing that seems interesting to me about this is not -- it's not are you a good -- it's not an are you a good person question. it's a is there something false in the biography here? is there a misrepresentation here? i mean, i do think -- i guess i'm a person who, you know, thinks that prison legal assistance is an important and cool thing for lawyers to do, and because providing pro bono assistance to people who can't afford good lawyers to get harvard-trained lawyers to help them out is a cool thing for lawyers to do. i like hearing that about him. clearly the white house likes bragging on that about him. if they didn't have those things to say about him, i wouldn't go

looking for him, you know what i mean? it seems like the concern here or the potential concern as the "wall street journal" raised is it there might be something wrong here in terms of the way he's mischaracterized his own past. or that the white house might have screwed up the vetting here somehow and that we can't necessarily trust what they're telling us about him. does that -- does that nuance at all affect that or still feel like it's a merrick garland -- >> i want to push back on your pushback. >> yay. >> i think we're there now. which is simply i think if we want to be fair, you know i have huge reservations about judge gorsuch's record and how i think he will be scalia-like in almost every important way, but i do think if we look at his judicial record and we sort of drain out the conversation about what he did or didn't do at harvard, i think he's actually been pretty good on some of these issues of prisoners, on some of these issues of whether the criminal justice system is fair to

prisoners. so i guess i would just say, again, i stipulate, you're right, he should be vetting. these questions should be asked. i actually think heavier on the scale for me is that i actually think he has been scalia in some of these cases good about downtrodden defendants. i might want to give him that. like i say, shift the focus back to do you believe there's such a thing as a so-called judge and do you believe there should be an independent judiciary? those are the questions that just seems to me this is the hearing to have that conversation and to dilute it with what seems to me, you know, important but not singularly important conversation about what you did in high school or law school. i don't know, rachel, i think this is the one chance to really teach the american public what three branches of government and checks and balances really look like. >> don't grimace. that's why you're here, dahlia.

that's the whole point. dahlia lithwick for "slate" magazine, all-around good person and excellent pusher back when need be. thank you. appreciate you being here. >> thanks, rachel. thanks. we have new reporting tonight on a strange and funny and wacky idea that is becoming way more important in our politics. that story is next. stay with us.

closing thought tonight. we learned today that the president is close to naming a silicon valley investor to run

the food and drug administration. the fda. which is in charge of keeping our food safe and making sure among other things vaccines and drugs are safe and effective. the man who's in line to lead the fda is not a doctor. has no medical background unlike any other fda director for the last half century but has a couple ideas on how to improve the health of all americans >> in a free mark, particularly any other free market in health care, people will be much healthier as well as wealthier. after i go through a lot of examples, i think i'll demonstrate why the healthiest societies in 2030 will most likely be on the "c." >> did you say on "c," on the sea in a seastead? yes, the man reportedly aligned to head the food and drug administration has been part of a movement to reclaim freedom and liberty by starting new countries on the sea. by tieing together like shipping containers and putting them on

the ocean then living on them and calling it a country. >> in a free market such as a seastead, people would have much more incentive to keep themselves healthy and fit and eat right and prevent chronic disease. offer a great opportunity not just for the people who live on the seasteads to good efficient care of high quality but also for people who come in specifically for that purpose. in terms of efficiency, and affordability of health care, it was much greater a century ago. >> so shouldn't we all move out to floating barges on the ocean and then health care can be as efficient and affordable as it was a century ago? it's a full employment program for leeches. so says the man who is reportedly donald trump's top contender to head the united states' food drug and administration. if a life of freedom and great health care on a libertarian floating country is not enough for you, he's also pursuing immortality, at least for a select few. here's the possible next chief

of the fda giving a speech on how venture capitalists and investors can get us to immortality. we can live forever. if we can only invent good new business models that will make us live forever. he calls it rejuvenation and reverse aging. he said in that same speech that maybe when it comes to pharmaceuticals in this country, maybe we should not have clinical trials for drugs anymore at all. just put the drugs all out on the open market, let people use them, see what happens and the free market will sort it out. yes, of course, that would change decades of policy for how we determine whether drugs are safe and effective. it's such a radical shift that even a lot of pharmaceutical companies are on record as worried about this guy now being in charge. but honestly, it's sort of hard for me to focus on that when he's devoted so much of his time and energy to promoting the creation of independent nations of manmade islands in the sea where we will all live forever. president has already made a lot of wacky nominations, but

apparently he's just getting started. peter thiel apparently referred the guy, so presumably he's going to be perfect. that does it for us tonight. see you again tomorrow. us toni. we'll see you again tomorrow. "first look" is up next. courtroom showdown. donald trump's executive order on immigration remains on hold, but today the federal appeals court will hear arguments on whether to restore the travel ban. plus -- >> she said that government, when it comes to education, quote, government really sucks, closed quote. what gives you the right to say that? >> democratic senators consider their protest over betsy devos. they are hoping to convince one more republican to vote against her. and as the patriots get a welcome home, the hunt is on to find tom brady's missing ser