seats on the supreme court and doing so by statute with the intent of altering the composition of the court for short term political gain. that's what fdr wanted to do. notwithstanding the fact that he had an overwhelming super majority in both houses of congress, fortunately fdr's idea that he pushed in the fall of 1936 didn't make it anywhere. it didn't gain progress. it met enough opposition even with both houses of congress being overwhelmingly controlled by his political party, that it stalled, quite mercifully, and it's remained ever since then at nine justices. i think it would have been a colossal mistake. joe biden himself as a u.s. senator, as a member of this body in a proceeding of this committee in 1983 gave a rousing speech that i recommend to all talking about that very thing,

acknowledging that the constitution doesn't require it but our respect for the separation of powers really ought to lead to us sticking to the number nine. don't pack the court. in recent days i've seen some in the media, some in this body, try to redefine what it means to pack the court. some have suggested, well, court packing takes various forms and it can mean confirming a lot of people all at once. some have defined it so as to suggest that it consists of doing that which the trump administration and the republican senate have been doing over the last 3 1/2 years which is filling vacancies as they have arisen and doing so with textualist, originalist judges. this may not be something that some like but this is not court packing. court packing is itself manipulative. it's something that has great danger to do immense political and constitutional harm to our system of government in part because it would set up a

one-way rachet. once you create a position and confirm someone to that position, absent death, retirement, impeachment, or removal, that position remains in place. so if for example a future congress and white house were to decide to get together and to pack the court and increase the number, say, to 11, and let's say it's democrats who do that, and we've got joe biden now as a presidential candidate who is refusing to say whether he would do it, there's a reason he's not saying whether he would do it. there's only one reason why you refuse to answer that question, it's if you're wanting to be able to do it but you don't want to take the heat for thinking about doing it right now. so if they do that, where does it lead? it inevitably leads to

republicans, if they have control of the congress and the white house, increasing it as well. pretty soon it looks like the senate in "star wars" where you have hundreds of people on there. i don't know what the total number would be. you increase it at all, you change the number at all, you do so for partisan political purposes at all, you delegitimize the court. and you can't delegitimize the court without fundamentally threatening and eroding and impairing some of our most valued liberties. you can't do that without inevitably threatening things like religious freedom, things like free speech, things that are themselves often unpopular but are protected by the constitution precisely because they are unpopular. and yes, in that respect, the constitution is sometimes counterdemocratic. sometimes it can be described as

fundamentally un-democratic. in fact it's the whole reason to have a constitution, is to protect us from the impulse of a majority that might be bent on harming the few in the name of the many. that's why the law is so important. that's why the position for which you're being considered is so essential. that's why we've got to do our job to make sure that the only people who get the job for when you've been nominated fit the bill. you, judge barrett, are someone in whom i have immense confidence. immense trust. and i look forward to voting to confirming you for that very position. >> thanks, senator lee. we will take -- let's come back at 12:45. we'll start with senator whitehouse. we have 15 senators left. everybody takes the 30 minutes, that's 7 1/2 hours. we'll take a break for dinner

tonight sometime later on, a short break. are you doing okay, after three hours of that? we'll come back at 12:45 and right now we're scheduled to be here until 9:00 but we'll do whatever the committee wants. we're in recess until 12:45. you've been watching president trump's supreme court nominee judge amy coney barrett's questioning, day one of questioning. i'm chuck todd of nbc news in washington, at our first break in the hearing. nbc senior correspondent andrea mitchell, former democratic senator claire mccaskill, former u.s. attorney chuck rosenberg, and nyu law professor melissa murray, also a law clerk to justice sotomayor and nbc justice correspondent pete williams. before i get to, because i feel

like we have two hearings here, we've had occasional questions to judge barrett and a debate between senators on obamacare, and i want to get to the debate on obamacare in a minute, but pete, i'm getting flooded by amy coney barrett supporters with the ginsburg rule, the ginsburg rule, the precedent, what she said in 1993, what she did say and what she didn't say, and the -- how would you say that judge barrett is trying to use this ginsburg precedent, if you will, from 1993? >> i would say she's been trying to use it like everybody else who has read the transcript of justice ginsburg's answers in her confirmation hearing. it's become the bible for all nominees to any judicial position since then. and she's followed it very carefully, i would say. >> what is it that -- i'm curious on this, pete. why is it there are people that say, look, what she said, what ginsburg said, but ginsburg also

gave us a very detailed answer on her views on abortion and here that standard has been used to avoid giving detailed answers on abortion or roe. >> justice ginsburg when she came to the court had a long history of advocating on behalf of women's rights. and she was saying it's only a natural extension to talk about abortion in that context. whereas amy coney barrett, of course, at the same time, to be fair, has expressed some views on the question of abortion. she has not advocated a position, unlike justice ginsburg, she's never litigated in favor of it. it's academic writing, it's speeches, it's newspaper ads that she's signed onto, which i guess is the closest she's gotten to advocacy. but i think, you know, justice ginsburg both broke the rule and made the rule, because i think

from that on out, everybody has followed that. justice kagan said no thumbs up, no thumbs down, which was her version of no hints or forecasts. so she's been very careful here. i think in one case even exceedingly careful. she was asked whether the president has any authority to delay the election. and you would think that that was pretty clear. but she said, you know, if that came before me i would have to study it. >> that was an amazing response that i'm sure lit up social media. andrea mitchell, this is a reminder that we are -- one of the frustrating things about watching all supreme court nomination hearings is, there are questions that i think as a citizen, americans want to have answered, and as a political conversation, both parties have agreed, no, nominees don't have to answer these questions. it can be quite frustrating for just the average person watching this. >> and for the senators,

especially those who are trying to challenge her confirmation. i think that's why, going in, they knew they did not have the votes. they are trying to come up with ways, perhaps, when it gets to the floor, because it's likely to get out of committee on a partisan vote unless something happens in the next couple of days, they are likely to try to do something that would change the climate, as amy klobuchar said yesterday, trying to get people to reach out to their republican senators, especially those in closely-fought races right now, and try to change the dynamic because they only need two more on the floor when it gets to the floor if it does get to the floor in the next week and a half or two weeks. look, it's totally understandable that she is adhering, as pete says, to the letter of what ruth bader ginsburg said when she was confirmed, when she was up for confirmation in 1993. that said, people are looking for some explanation of some things she's written, that abortion is brutality, that she's been very outspoken about,

and some way that she could try to say that she is not wedded to those. she said today her personal views are not the views she would take and her religious views are not the views that she would take to the court, that she would rigorously decide every case on its merits. that said, you can understand why the democrats as well as a lot of partisans in the audience, the viewers, are frustrated. as pete and you were just mentioning, her saying she would have to study a case about whether the president could delay or postpone the election is kind of being too fastidious about it, because it's clearly not in the constitution. it's important that she said she's never had a conversation with any of the president's staff and anybody on the senate, referring to josh hawley from missouri, where he has said he would not vote to confirm even a trump nominee unless it was clearly stated that nominee was against abortion, but he's just inferring from all her writing that she would be in favor of

some of these state issues that will come before the court which do limit roe and even limit kasie rcas casey, the important case in the '90s that came down from pennsylvania. >> failing to even just say, here's what it says in the constitution. >> exactly. especially as an originalist. >> that's exactly right. but as i intro'd our break panel here, i said, we've had some questioning of the nominee and we've had the debate about obamacare. it all began with lindsey graham's opening statement with dick durbin responding two hours later. here is a quick mashup of it. >> under the affordable care act, three states get 35% of the money, folks. can you name them? i'll help you. california, new york, and massachusetts. they're 22% of the population. >> when the chairman opened up on it and said what he did, i

was puzzled. three states get 35% of the money? how can that possibly be true? it turns out because those states decided to extend medicaid coverage to the people who lived in the states and his did not. and as a consequence, fewer people than south carolina have the protection of health insurance. >> so claire mccaskill, you and i began yesterday by being surprised at the discipline of the democrats on health care. i would say the discipline drew blood, because lindsey graham's opening statement today where he felt the need to rebut what he thought was said yesterday, and then, by the way, gave a description of what he would like to see in south carolina which i believe someone might say, hey, you just described obama. but claire mccaskill, was that quite the tell from lindsey graham this morning? >> it was a tell. and he was defensive. and by the way, let's point out to everyone, south carolina is a

big winner with federal money. for every dollar sogt csouth carolinians pay to the federal government, they get back seven. they get more money from the federal government back than they pay in. not only was he wrong about the way he used context for his argument, it shows how defensive they are. but, you know, what i think is kind of really weird about today is the fake outrage from the republican senators. trump campaigned on overturning -- appointing nominees to the supreme court that would overturn abortion rights and the aca. so -- and by the way, some of those republican senators did too. and they're all acting so outraged that the nominee is getting asked about it. of course she's going to be asked about it because that's what the guy who nominated her said he was going to do. seems pretty simple to me. >> what have you thought of her answers, claire mccaskill?

>> well, she's done a good job of playing hide the ball. i think the biggest mistake she's made all day is pretending, here she is, first in her class at law school. i'll tell you, i wasn't first in my clays, i want to the university of missouri, but i sure as hell can tell you that the president can't delay the election. it's dumb for her to go that far, it makes it look like her job today is to be evasive. >> melissa murray -- first of all, claire mccaskill, i'll just said, you said missouruh -- >> and the university of missouri has a very good law school, to make you happy. >> fair enough. reacting to what claire mccaskill said about, has she been a bit too evasive. >> that's managed to dodge and weave about important issues the public does want to know about. she notes she will not overrule

casey. she didn't say whether she would overrule "roe v. wade." it's roe that actually establishes a right to abortion, that's the critical question and precedent that's most in jeopardy here. she also noted she was not necessarily against "obergefell v. hodges" although they did conflate obergefell with stricting down the provisions of the defense of marriage act. she never said anything about how she would apply obergefell going forward. there are questions pending around the country whether the protections for same-sex marriage also extend to marriage-adjacent issues like birth registry for parents or other forms of family-intimate rights surrogacy. she made the point she was not talking about ibf when she

answered that question, but that's all on the table. >> i sort of heard somebody who is not overturning precedents but maybe chipping away at them. and that's how i felt as if she was answering some of those questions. >> to be clear, chipping away at precedent and overturning it is fundamentally a similar kind of thing. you can overrule roe entirely or hobble roe or desiccate it to a point where it's a right only in name. and i think that's the question here. is it a long term strategy or something that is more immediate? if you think that she was sort of dancing around the edges and suggesting more of a chipping away, that might take you a little bit further. but the ultimate goal i think is the utter hobbling of whatever this precedent continues to mean. >> chuck rosenberg, one of the few places where i think we got into the weeds a bit on some of her legal thinking had to do with some of her views on guns and particularly that one case where she seemed to question whether the constitutional

rights of nonviolent felons should be upheld when it comes to owning a gun. i'm curious what you thought of those exchanges. >> it's an interesting case, chuck. the case is cantor v. barr, a seventh circuit opinion in which she was in the dissent by two to one. the court ruled mr. cantor, convicted of a nonviolent felony, could not obtain a gun post conviction. what the majority is doing is using a felony status as a proxy for dangerousness. and what judge barrett is saying in her dissent is that as a proxy for dangerousness, a felony conviction is too broad, she would rather have an individualized determination, in other words because mr. cantor was a nonviolent felon and doesn't have a violent felony past or a violent past at all, we ought to be able to make a determination that he can have a

gun, that his second amendment rights ought not be abridged. i read her dissent very carefully. i thought it was principled, i thought it was thoughtful. i just happen to disagree with it, i think it's unworkable, and that the majority is right in this case, because we have to find some way to do this more quickly, with some dispatch. i think others might argue and it sounded like some of the republican senators were arguing that if you're going to abridge a constitutional right, you have to make very deliberate, very careful, very particularized determinations. in this case i think it's unworkable. i think the majority had it right. i think she had it wrong. i still think it was a thoughtful dissent and what impressed me how clear her writing is and how clearly she tried to think through a difficult problem. >> you know, and it brings me, pete williams, to something else she tried to emphasize quite a bit, which was, and i found it interesting, many of the republican senators have wanted to say, your mentor, justice

scalia, your mentor, justice scalia, and even democrats have used this, okay, scalia thought this, do you think this, scalia thought this, do you think this. she finally said, if confirmed i'm not going to be justice scalia, i'm going to be justice barrett. >> her opponents have played that a lot, a long list of cases justice scalia decided in which they've said, if that's her mentor, this is her position. she said it specifically on the question of same-sex marriage. the questioner noted that justice scalia dissented in the obergefell decision and when the supreme court overturned the defense of marriage act. she said, look, you get justice barrett, not justice scalia. she also said early on, textu textualists originalists don't always agree on how to

decide cases. it was neil gorsuch who wrote the opinion that said the 1964 civil rights act does cover discrimination on the basis of sexual orientation or transgender status and that was certainly a break from other textualists or originalists but his opinion is a very textualist opinion. so that's an example of where they don't always agree and that's what she's saying as well. on precedent, she also said that just disagreeing with the previous decision is not enough to overrule precedent. she's given the sort of classic answers on abortion or any of these hot button cases that both republican and democratic appointees to the supreme court have always said you have to respect precedent and i have no preconceptions. >> one of the least legal moments of the back and forth so far today was dick durbin and judge barrett on george floyd. i want to play that exchange here.

>> have you seen the george floyd video? >> i have. >> what impact did it have on you? >> umm, senator, as you might imagine, given that i have two black children, that was very, very personal for my family. jesse was with the boys on a camping trip out in south dakota so i was there, and my 17-year-old daughter vivian who is adopted from haiti, all of this was erupting. it was very difficult for her. we wept together in my room and it was difficult for my daughter julia who is 10, i had to try to explain some of this to them. my children to this point in their lives have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence. and for vivian, you know, to understand that there would be a risk to her brother or the son she might have one day, of that

kind of brutality has been an ongoing conversation. it's a difficult one for us like it is for americans all over the country. >> andrea mitchell, what i found about this, this was one of the few questions that it wasn't a judge who responded, it was an american citizen, a mom, you know, it was one of the rare moments where -- and i kind of wish more senators would ask more questions like that so you find out the fuller picture of who these folks are. >> and that made her so relatable. this is a white mom with black children, explaining the talk that black parents have had to communicate to their kids for generations, for centuries, if you will. and this is, you know, an interracial family, a multiracial family. it's something that is more and more present in america, something not conceived perhaps by some people in the senate, but others, there were people on

this panel who have black grandchildren and can relate to this. it's just very accessible and touching to me and i think that that makes her -- it's one of the reasons why she was considered to be a very appealing candidate. >> claire mccaskill, during the back and forth, at one point senator durbin asked about systemic racism. she said, whether it's outright or systemic racism or how to tackle the issue, those things are policy questions. they're hotly contested policy questions that have been in the news and discussed all summer, essentially making the point that that isn't where she's going to weigh in. what did you learn from her in that answer, though? did you learn something about her? >> well, when it came to the important moment, she ducked and did a really good weave and didn't really talk about how she will view these cases. and i get that this is what her

job is today, but durbin's exchange with her was pretty important, not just on the gun thing. let's forget about the legal analysis that my friend chuck does so well about her decision and whether it was well-worded and well-thought-out. what she really is saying politically is, gun rights are more important than voting rights for felons. now, that politically is a very dangerous position politically, that gun rights for felons are more important than voting rights. let that sink in. the other thing about that exchange with durbin was his beginning to talk about citizens united. i hope other senators do this. >> lindsey graham joked about it. >> brazen -- citizens united was brazen unilateral optimism. our founding fathers didn't even trust corporations, they didn't even have corporations except ones owned by the state. so for the court to unleash

unlimited corporate money, undisclosed, in our elections, is really a big deal. and it was activism. and i hope other senators get to it. >> i'm going to pause you guys here for a second. joining me now is the second ranking democrat in the senate and a member of the judiciary committee and whose ears must have been burning just now because we were talking about his exchanges, senator dick durbin of illinois. senator durbin, thanks for joining us here during your lunch break, i hope you get something to eat. look, you asked some interesting questions to her. you just heard claire mccaskill's disappointment with some of the answers there. what's a followup you wish you had -- that you want to ask going forward and what did you make of her -- let's start with the gun answer. >> chuck, last night i was sitting in my apartment with stacks of all these cases and articles and suggested questions. i thought to myself for a minute, what would the average person ask of her that would relate to her official duties? i thought about george floyd.

i thought, we all remember that 8-minute, 46-second experience and what it meant to us. i wanted to know what it meant to her, but i want to hook it up not just with her answer but also with what she has written. and claire put her finger on it, the question came before the court and she was the sole dissent of the case, wrote 37 pages of dissent on a 27-page opinion. it boiled down to this, she believes you cannot keep a firearm out of the hands of a felon unless he has been convicted of violent felonies. and everyone else disagreed with her conclusion. added to that was the whole question of voting. claire got there, she knew where i was headed. when it came to voting, the commission of a felony was enough to disqualify, and when it comes to owning a gun, not so in the mind of amy coney

barrett. the denial of voting rights has been a traditional effort to suppress african-americans in this country. that to me is racially motivated through our history. i tried to connect the two up. perhaps if i had followed up, i would have pursued that a little more. >> if her answer to you was, you know what, your right, and in fact connecting voting rights to this should be subjective is essentially what she's arguing, that some of these rights that you get taken away should be substantive when it comes to convictions. >> what it boils down to is this. a swindler ended up paying $27 million in a civil settlement for cheating america and our government agency who says i think this is terrible, you took away my second amendment rights for my conviction. yes, we sure did. and her conclusion was, that's unfair, it's just a felony, just a felony. i don't get that. and secondly, i really do appreciate and don't question

her feelings about the george floyd situation. we have african-americans in our family and i will tell you i've thought about it as a grandfather over and over again. but when it comes to her decision on the right to vote being denied because of felony convictions, the victims overwhelmingly are african-americans and have been throughout history. >> you and i had a conversation about what joe biden said about court packing on sunday. and i sort of hinted, i said the fact that he uses that phrase, is that a tell? let me play for you something joe biden said last night and get you to react to it. it's 15, control room. well, i'll read it you to, i'm told we don't have it. he said, i'm not a fan of court packing, but i don't want to get off on that whole issue, i want to keep focused. the point is, he has now expressed a preference here. are you comfortable expressing a preference? >> listen, i know joe biden, i

respect him, i'm voting for him enthusiastically. i know that he's a person on the judiciary committee who had a wealth of opinions on almost every subject. i'm not surprised he wants to at least somehow raise this as part of the national conversation. i can tell you point blank, chuck, there is no ongoing committee to reform the judiciary set up by democrats anywhere i know of. we have a focus now on this supreme court nomination and this election, period. >> where are you on the filibuster? because that is connected to this question, right? you eliminate the filibuster, everything is the 50, and that's ultimately where folks are going, some people think that that may be the more realistic place you guys might go, d.c. statehood or something like that. where are you on that question? >> i'm troubled by the filibuster because i've seen what it's done, when it's been abused. in the mcconnell era we have seen more uses of the filibuster than ever in the history of the

united states. it's become the mcconnell veto. he wants to preserve this. now we have republicans who readily concede on the floor of the senate that we have lost our reputation as a deliberative body, considering amendments and legislation, they don't do that anymore. they concede that point but then they say we have to preserve mitch mcconnell's right to control anything he wants coming to the floor and that's what the filibuster means today. >> one other piece of news happened, mitt romney put out a statement basically surrounding the events that took place in michigan, the attempted kidnapping of the michigan governor, we now found out the virginia governor was on the list as well. he writes, i'm troubled by our politics as it has moved away from spirited debate to a vile, vituperative, hate-filled morass that is unbecoming of any free nation. the president calls for the justice department to put the prior president in jail. he attacks the governor of

michigan on the very day a plot is discovered to kidnap her. democrats launch blistering attacks of their own though their presidential nominee refuses to stoop as low as others. he name checks a couple of people, somebody from the very far left in media world, and he called out speaker pelosi for some of her actions. i'm just curious what you think of senator romney's statement. >> thanks, mitt. thanks for saying it. i wish more people would say the same thing. certainly in the republican ranks you can count on one hand the people who have had the nerve to step up and say something. when this president said he was going to ignore the decision of the electorate, wasn't going to commit himself to accepting a peaceful transition of power, who spoke up against him? two people that i knew of, mitt romney and the republican governor of massachusetts. that's it, end of story. and you think to yourself, that should be the bipartisan universal reaction, that is disgusting and repugnant that a

president would not accept a decision of the electorate. >> senator dick durbin, democrat from illinois, i appreciate you coming on during your lunch break and i hope you get something to eat. all of this is happening with 21 days to go with the election. we have reporters spread out around the country. geoff bennett is in south florida where joe biden will be today. cal perry is in south carolina where senator lindsey graham is in the fight for his political life. geoff bennett, the president was in florida yesterday. joe biden going there today. what is the biden message for the day, geoff? >> reporter: i'll tell what you, chuck, florida is considered to be a grand prize in the fight among all the battleground states because if donald trump doesn't win florida it becomes increasingly difficult if not entirely impossible for him to win the election. but joe biden is coming here to south florida, to broward county, to miramar, florida, where i am right now. miramar has the largest population of jamaican americans. the reason why that matters is because democrats think they might have a certain affinity for kamala harris given her jamaican roots on her father's

side. it also has a large black population. broward county in general has voted for the democratic presidential candidate in every election since 1992. so from miramar he's going to head over to pembroke pines, about ten minutes from here, and lay out his vision for older americans, the campaign says. the reason why that matters is because democrats see a pickup opportunity among older americans both here in florida and across the country. i mean, with the pandemic, the president's handling of the pandemic, you have seniors who haven't been able to, for instance, see their grandkids at least since february or march. so that's a resonant issue. then on this issue that you were speaking with senator durbin about, joe biden now giving his clearest position yet on this issue of court packing. i'm told we have sound that have, if we do we can hear that now and talk about it on the other side. >> i've already spoken on -- i'm not a fan of court packing. but i don't want to get off on that whole issue. i want to keep focused. the president would love nothing better than to fight about whether or not i would in fact

pack the court or not pack the court, et cetera. the focus is why is he doing what he's doing now? why now? with less than 24 days to go in the election. and the hearing is going to take place, it's only going to be ten days or whatever it is before the vote takes place. that's the court packing the public should be focused on. >> reporter: so the unwritten rule of campaign politics is that if a candidate decides that he or she won't talk about something, that then becomes the question that he or she feeield the most often. joe biden has been asked this question time and again about so-called court packing. last night in this interview with an ohio affiliate, he said he's not a fan of it. joe biden is a moderate, he's an institutionalist, he's campaigned on restoring civility, he's not a fan of it, although as we know, progressives in the party have said the only way to preserve

landmark cases like "roe v. wade" is to expand the court and frankly it is a warranted action, given, as democrats see it, the last seat and potentially two seats now have been stolen, as they say, from democrats, chuck. >> geoff bennett, as i said on sunday, the fact that joe biden was using the words "court packing" has sort of given away the decision. geoff, thank you. let's check in with senate judiciary chairman lindsey graham, in the fight of his life, in a dead heat with democratic challenger jaime harrison who has shattered all senate fundraising records ever, bringing in $57 million in the final quarter before the election. cal perry is in mt. pleasant, south carolina, where he's been talking to voters. cal, lindsey graham has made it pretty clear how much the election is on his mind during his remarks.

>> reporter: yeah, you talked about two hearings taking place. if you watch this hearing from south carolina, you're seeing a third, and that's the reelection campaign by lindsey graham as he addresses really the state. he's gone out of his way to do so. he won his last election by 16 points six years ago. donald trump carried this state by 14 points. so it is surprising that both donald trump and lindsey graham are in neck and neck races. as you said, $57 million raised by jaime harrison. the question is who are the voters that might be willing to actually split the ticket here, vote for trump but also vote for jaime harrison? in that vein, listen to part of my conversation with a south carolina republican. >> i think lindsey's pretty solid with the washington crowd, you know. i think us so you thought cuth would like to see him do more for us. i like that he named charleston, i'm local, that gave me a little

hope. the health care thing is a mess i think on both sides. we're all just kind of figuring out who can come up with the best plan. i think that's going to be a big factor in this. >> reporter: does it hurt lindsey graham here in south carolina or does it help him? >> it probably helps him because of the -- you know, the abortion issue, that's -- you know, some people are choosing to use that as a one issue that they want to hold onto. i think it's helping him. forgetting that we're losing lives in other manners. >> reporter: so you hear there a smattering of different voices. some democrats, some trump voters. there is this journey also that lindsey graham has taken us all on where he's being seen as flip-flopping, everything from his relationship with donald trump of course to now this confirmation of this supreme court hearing. chuck, $57 million goes a long way in the media markets here in south carolina. if you watch the local news, and i did last night, in the breaks,

it is the jaime harrison show. so any chance that lindsey graham has to be on tv and to be talking about south carolina issues, look for that to happen. >> trump/harrison voters, that will be very interesting. >> reporter: the unicorns. >> voters look at this a lot differently than people that wear the jersey sometimes. so anyway, cal perry on the ground for us, thanks very much. early voting begins in texas today amid new accusations of voter suppression after a u.s. federal appeals court on monday upheld governor greg abbott's order to reduce the number of mail-in drop-off ballot sites. it is, ready for this, the only ballot drop-off location in all of harris county, one place, at least they picked a huge place, and it is nrg arena. priscilla, what's turnout been like, what are you seeing? give us some color here. >> reporter: chuck, i want to put a fine point on that.

2.4 million voters here in harris county. and this is the only drop-off location. take a look. when i was here last week there was only one tent accepting those drop-off absentee battle. now four of them are running. these cars are moving through a little quicker today. the lines haven't quite wrapped around just yet. of course folks are very concerned that this is going to be the only place for so many voters here in harris county. we were actually here at 5:00 a.m. this morning, whenever voters were lined up outside of the gates to get in, to cast their ballots, because this isn't just a location for absentee ballot drop-off, there's also drive-in voting happening back here. you can see the cars are able to pull in to those tents, cast their ballot with privacy and security from the comfort of their cars. again, the lines have been moving fairly quickly here. and i had an opportunity to talk to some of those voters who lined up hours early.

most of them saying the aca was important, on their minds, and there was a mix of folks who felt that the senate shouldn't be hearing -- holding hearings for amy coney barrett and those that said it's the president's choice, it's up to him, chuck. >> priscilla thompson, quite the interesting drive-through voting booths themselves, that would be something i would be curious to experience. priscilla thompson on the ground in houston, thank you, priscilla. breaking election news, ready for this one, that could impact voter registration in virginia. a severed cable in the online registration system on the last day of register to vote. "the washington post" reports a cut fiberoptic cable has forced officials to use manual

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the hearing is about to start again. i want to bring in chief legal correspondent at msnbc, ari melber. ari, sheldon white yes, swhiteh first. what are you looking for a to? >> they're getting close to re, i mean, reconvening, chuck. i'd hard to see anything that's really moved the needle. as you mentioned, there's joe biden and others in the background trying to avoid being caught into a discussion about the future size of the court. there was the discussions about precedent here. i think judge barrett has everything to lose and very little to gain from giving detailed answers.

so she's clearly going to rope-a-dope during at least the hearing as we've seen thus far. >> yeah, it has been pretty rope-a-dopey. i guess some day we will get to a point where the people want direct answers. do you think we'll ever get to that with judges? >> i think we may, chuck. i thought your line of questioning earlier on that point was insightful because people want to know the answers from these judges as they testify under oath, that's the whole purpose. >> i wonder if more will adopt the dick durbin approach, ask about things that aren't legalese, things that regular americans talk about. but things are getting started. sheldon whitehouse is up first. >> judge barrett, you can take a bit of a breather on your return to the committee because what i want to do is go through with the people who are watching this

now, the conversation that you and i had when we spoke on the telephone. you were kind enough to hear out a presentation that i made. and i intend to ask some questions in that area. but it doesn't make sense to ask questions if i haven't laid the predicate, particularly for viewers who are watching this. so i guess the reason that i want to do this is because people who are watching this need to understand that this small hearing room, and the little tv box that you're looking at, the little screen you're looking at, are a little bit like the frame of a puppet theater. and if you only look at what's going on in the puppet theater, you're not going to understand

the whole story, you're not going to understand the real dynamic of what is going on here. and you're certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react. so first let me say, why do i think outside forces are here pulling strings? well, part of it is behavior. we have colleagues here who supported you, this nominee, before there was a nominee. that's a little unusual. we have the political ram job that we have already complained of, driving this process through at breakneck speed in the middle of a pandemic while the senate is closed for safety reasons and while we're doing nothing about

the covid pandemic around us. we have some awkward 180s, mr. chairman, you figure in this. our leader, said when it was garland versus gorsuch, that of course, of course the american people should have a say in the court's direction. of course, of course, said mitch mcconnell. that's long gone. senator grassley said, the american people shouldn't be denied a voice. that's long gone. senator cruz said, you don't do this in an election year. that's long gone. and our chairman made his famous "hold the tape" promise. "if an opening comes in the last year of president trump's term, we'll wait 'til the next election." that's gone too.

so there is a lot of of hard-to-explain hypocrisy and rush taking place right now. and my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows. people may say, what does all this matter? this is a political parlor game. it's no big deal. well, there's some high stakes here we've been talking about here on the -- on our side. and i'll tell you three of them right here. roe vs. wade. obergefell and the obamacare cases. here's the gop platform, the republican platform, the platform of my colleagues on the other side of this aisle say that a republican president will appoint judges who will reverse roe, obergefell and the

obamacare cases. if you have a family member with some interest in autonomy over their body in roe vs. wade, the ability to have a marriage, have friends marry or niece or sons or daughter marry, someone of their same sex. and if you are one of the millions of americans who depend on the affordable care act, you've got a stake. it's not just the platform. over and over agairngs let's start by talking about the affordable care act. here's the president talking about this litigation that we're gearing up this nominee for, for november 10th. in this litigation he said he want to terminate health care under obamacare. that is the president's statement. so when we react to that, don't act as if we're making this stuff up. this is what president trump

said. this is what your party platform says. reverse the obamacare cases. senator after senator, including many in this committee, filed briefs saying that the affordable care act should be thrown out by courts. why is it surprising for us to be concerned that you want this nominee to do what you want nominees to do. one quick stop on nfib. national federation of businesses, until it filed the nfib case had its biggest donation ever of $21,000 in the year that it went to work on the affordable care act, ten wealthy donors gave $10 million. somebody deserves a thank you.

so let's go on to roe v. wade. same thing. president trump said it will happen anyway because he's putting pro-life judges on the court. the republican party platform says it will reverse roe. why would we not comment on that and take you at your word? senators here, including senator holley have said i will vote only for nominees who acknowledge that roe v. wade is wrongly decided and their pledge to vote for this nominee. do the math. that's a really simple equation to run the republican brief in june medical said roe should be overruled. so don't act surprised when we

ask questions about whether that's what you're up to here. and finally, out of the ad world that you've spared yourself wisely, judge barrett, the susan b. anthony foundation is running advertisements right now saying that you are set. you are set to give our pro-life country the court that it deserves. there is the ad with the voiceover. she said, she said. and then roe, obamacare cases and obergefell, gay marriage. national organization for marriage, the big group that opposes same-sex marriage says in this proceeding, all our issues are at stake. republican platform says it wants to reverse obergefell. and the republican brief filed in the case said same-sex relationships don't fall within any constitutional protection.

so when we say the stakes are high on this, it's because you've said the stakes are high on this. you've said that's what you want to do. so how are people going about doing it? what is the scheme here? let me start with this one. in all cases there's big anonymous money behind various lanes of activity. one lane of activity is through the conduit of the federalist society. it's managed by a guy -- was managed by leonard leo and it's taken over the selection of judicial nominees. how do we know that to be the case? because trump has said so over and over again. his white house counsel said so. so we have an anonymously funded group controlling judicial selection run by this guy leonard leo. then in another lane, we have,

again, anonymous funders running through something called the judicial crisis network, which is run by carrie severino doing pr and campaign ads for republican judicial nominees. it got 17 -- single 17 million dollar donations in the gorsuch case and 17 million to support kavanaugh. somebody, perhaps the same person spent $35 million to influence the make-up of the united states supreme court. tell me that's good. and then over here, you have a whole array of legal groups also funded by dark money which have a different role. they bring cases to the court. they don't wind their way to the court, your honor. they get shoved to the court by these legal groups, many of which ask to lose below so they can get quickly to the court to get their business done there. and then they turn up in a

chorus, an orchestrated chorus of anarchy. now i've had a chance to have a look at this. and i was in a case, actually. the consumer financial protection case. and in that case there were one, two, three, four, five, six, seven, eight, nine, ten, 11 amicus briefs filed. and every single one of them was a group funded by something called donor's trust. donor's trust is a gigantic identity scrubbing device for the right wing so that it says donor's trust is the donor without the real donor. it doesn't have a business, a business plan, it doesn't do anything. it's just an identity scrubber. and this group here, the bradley foundation funded 8 out of the 11 briefs. that seems weird to me when you have an amicus brief coming in little flotillas funded by the same groups but nominally separate in the court.

so actually attach this to my brief as an appendix. center for media democracy saw it and they did better work. they went on to say which foundations funded the brief writers in that sfpb case. here's the bradley foundation for $5.6 million to those groups. here's donor's trust. $23 million to those brief-writing groups. the grand total across all the donor groups was $68 million to the groups filing amicus briefs pretending they were different groups. and it's not just in the consumer financial protection board case. you might say, that's just a one-off. here's the anti-labor case that had a long trail through the court through fredericks and knocks and other decisions. and source watch and propublica

did some work about this. here's donor's trust and donor's capital fund and here's the bradley foundation. and they totalled giving $45 million to the one, two, three, four, five, six, seven, eight, nine, ten, 11, 12, 13, 14, 15 groups that filed amicus briefs pretending to be different groups. and both of the lawyer groups in the case. funded by donor's trust. funded by bradley foundation and janice. this is happening over and over again, and it goes beyond just the briefs. beyond just the amicus presentations. the federalist society, remember this group that is acting as the conduit and that donald trump has said is doing his judicial selection? they're getting money from the same foundations. from donor's trust, $16.7 million. from the bradley foundation, $1.37 million.

from the same group of foundations total, $33 million. you can start to look at these and you can start to tie them together. the legal groups. all the same funders over and over again bringing the cases and providing this orchestrate ed chorus of anarchy. the same group also funds the federalist society over here. "the washington post" wrote a big expose about this, and that made leonard leo a little hot. a little like a burned agent. so he had to jump out. and he went off to do anonymo anonymously funded voter suppression work. guess who jumped in to take over the selection process in this case? for judge barrett. carrie severino made the hop. so once again, ties right