very good to be with all of you. i'm alex witt in for katy tur. charges against paul pelosi's attacker could be in any minute as the speaker's husband recovers from surgery in the icu. a source says paul pelosi is awake and has cognitive function and remembers everything. david depape faces a string of charges including attempted murder and a parallel investigation into the friday assault. there is a lot we still don't know, though, but law enforcement officials have confirmed the suspect was looking for nancy pelosi, zip

ties were discovered at the scene, blog posts are being investigated in connection with the situation, and a range of contradictly political views including liberal anti-establishment and more recently far right extremism. it raises questions about the most powerful women in politics and one of the most threatened members of congress in the country according to a report today in "the new york times," not to mention what happened on january 6th and these scenes. >> nancy. oh, nancy. nancy. >> chilling in fact. the parallels between those rioters and depape hunting for pelosi in her own home are tough to deny and it goes beyond the speaker. and the numbers you're about to see on your screen, right there, you're reading it right, we have seen close 1,000% spike against

members of congress since donald trump took office. we are going to break down how the toxic stew of conspiracy theories and misinformation fueled in part by the former president and his allies has egged on violence across the country for lawmakers. because while there has been an appropriate response from some on the right, slamming such a brutal act of violence and condemning those who perpetuate these threats, you also have sitting members of congress, like senator ted cruz, victim blaming, pushing conspiracy theories, calling this a san francisco crime story, being pinned on republicans. and then there are others like virginia governor glen youngkin, already using the attack as campaign trail bait. >> speaker pelosi's husband had a break-in last night, in their house and he was assaulted. there is no room for violence anywhere but we're going to send her back to be with him in california. that's what we're going to do there. >> tasteless there. let's go to san francisco outside the pelosi moment with

an update on the investigation and where it stands. >> reporter: still recovering in the icu after undergoing surgery over the weekend to treat the fractured skull and serious injuries to the right arm and hand and we learned that fbi and the san francisco district attorney, the san francisco police department, other officials, have interviewed him from his hospital bed as he is recovering. they say he appears to still have all of his cognitive function, and he appears to remember everything from friday's attack. so obviously good news in that sense. mr. pelosi is recovering and we expect state charges to be announced today and the district attorney told me over the weekend, she plans to bring attempted homicide, assault with a deadly weapon, burglary and other felonies involved in the friday attack and we expect federal charges announced in coming days. we learned that the attacker entered the home via the rear window, breaking into that window before he went upstairs to find mr. pelosi, and then

police also told us that there were zip ties found in the home and concerns that the two men did not know each other prior to this attack, depunking conspiracy theories that we saw over the weekend. investigators have interviewed the suspect and reviewing the online activity with conservative, extremist alt right ideology and the suspect does remain in the hospital. the plan for now is for his arraignment to be set tomorrow. that could change if he remains in the hospital. back to you. >> maura, thank you very much. joining me from capitol hill is our national security analyst, welcome. notably, donald trump has said nothing at all. his silence is sending a message to some. but the same cannot be said for other members of the gop. walk us through the mixed response to this attack. >> that's right, we've seen a fairly broad range of responses to this attack from within the republican party starting with some who were quick and unequivocal to condemn the

attack, figures like mitch mcconnell and others waited a few days to speak out personally and then ultimately sent their thoughts and their prayers to the pelosi family, that includes kevin mccarthy, the man seeking to strip away the speaker's gavel from here. there are other republicans including some on the far right who have sought to connect this to crime and big cities and that includes marjorie taylor greene and others on the far right like senator ted cruz of texas use this to try to boost some conspiracy theories that are propped up on far right spaces on the web over the weekend. now it is worth noting that our nbc affiliate has found that police are speaking on record to knock down some of these conspiracy theories saying there is no evidence that paul pelosi knew this attacker, and of course, we have donald trump the defacto leader of the republican party himself, who has been silent. one other notable figure here is tom emmer, the leader of the house republican campaign committee seeking to take the majority. he has an ad running on the web, where he shoots a gun at an

unseen target and has the hashtag fire pelosi under it. he was grilled about this on one of the sunday shows. i want to play what he had to say. >> why is there a gun in a political ad at all? >> it wasn't an ad. or a tweet. >> i was tweeting out -- >> hashtag fire pelosi with a weapon. >> wouldn't a pink slip be more fitting if it is about firing her? >> it is interesting, it's interesting, that we're talking about this this morning, when a couple of years back, when a bernie sanders supporter shot steve scalise. >> which was horrendous. horrific. >> and i never heard you or anyone else in the media trying to blame democrats for what happened. >> now, we see emmer not backing away and the larger context is speaker pelosi has been the leader of the democratic caucus for about 20 years and faced an escalating series of attacks from the right, political rhetoric that has escalated over time, a little bit of a drug where you need to up the dose

over a period of time to get the same kind of response. it should be abundantly clear that nobody is directly to blame for this attack, other than the suspect, a parent himself, david depape, but there is a broader conversation, so close to the election, about the role of political rhetoric and the role of political leadership in turning down the temperature, it is a toxic stew that we're looking at as a country and it shows, it speaks it a very changed political environment. >> 100%. and i'm actually glad that we played that clip there from that commercial, that ad, because i appreciate margaret brennan trying to use firing and a pink slip in that context where it is clear that tom emmer is definitely using the word firing in another interpretation and utterly disgusting frankly considering what we have seen happen to paul pelosi. >> clint, let's go to you. the very same day of the attack, a u.s. joint intelligence bulletin warned of a heightened threat driven by extremism.

and lone offenders are the likeliest suspects. how concerning is this for you, this escalating violence just a few days now before a really hotly-contested election? >> well, i think, alex, i'm not surprised by who the target was, nancy pelosi, she's been demonized for not just one year, but many years, to a decade. and if you went on social media today, for the most part, if you typed the name pelosi in, in any of the search, twitter, any of the main social media platforms, you're more than likely to see a lie about paul pelosi than the truth. separately, across the board, the biggest threat this year has been domestic, in terms of domestic extremism, and it's an election year. election years bring up a lot of political speech and that political rhetoric, it goes to the next level trying to incite people to be mobilized and angered to turn out to the polls, but what happens is in the era of terrorism, where threats are pushed through the media, through social media, out into the open, the target is

known. i don't think anyone was surprised that speaker pelosi and her husband were targeted. what we don't know is who is the actor is going to be. the probability goes up dramatically when you see political experience that demonizes targets and when you hear things like fire pelosi, or the use of firearms, or discussion of boxing, and where people live and who their famly members are. and i don't think anybody was surprised by the attack. i think the only surprise is it did not happen sooner based on the rhetoric from january 6th to the present. >> i want to pick up on something you alluded to, which is the attack, giving us a preview, going into social media, potentially on how elon musk intends to run twitter because we know he tweeted and then deleted the response to hillary clinton over the weekend. pushing a baseless and a homophobic conspiracy theory about the assault and we will

bring it up for our viewers. musk has promised to not reinstate banned accounts like donald trump until some sort of a moderation council has been set up and we don't know how that council would be defined nor how long it would take to do so. however, how much could this leadership from musk amplify this dangerous online rhetoric, that is more like life-threatening violence. no disputing that. what do you think, clint? >> yes, if we rewind ten years, this was the approach social media companies took in the day. everything was the town square a free place to have speech and discussion. and that was right up to the point until you started to see terrorist attacks unfold on the social media platforms. just under the arab spring, there are numerous incidents and one in particular in the west gate attack of el sha bab in kenya where the social media platforms are used to conduct, coordinate and radicalize and execute terrorist attacks. fast forward to now, there is a movement to push all that

content moderation off the table. lots of lessons learned both through the terrorism era and with disinformation, since the election year '16. so there seems to be a lot of thought about taking off the reins but as we can see from the last week, both from the attack and mr. musk's tweets, this is not so straightforward. it's a very difficult place to police and keep safe, and i would have to say, looking at the last eight days, heading into the election, if you're an election worker in this country, if you're a state official, if you're a local official trying to conduct an election or protect a ballot box or a polling place, that is the demonization, if it comes from political leaders, you're putting people's lives in danger and we saw this january 6th much harder to defend across the country at thousands of polling places. >> you're absolutely right. thank you so much. we want to let all of you know that we're going to get the federal charges being levied against david depape sometime

soon. we are keeping our ear on that. meantime, still ahead, only eight days remain until the 2022 midterms. what the polling is telling us about those neck and neck races. they're going to determine which party controls the senate. steve kornacki is here, and from the senate to the house, how republicans are breaking into once solidly blue strong holds and how democrats are scrambling to respond. >> later, south korea is mourning more than 150 deaths after a halloween celebration turned deadly. what law enforcement is admitting today.

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there are only eight days until the midterm elections and it looks like control of the senate will come down to a handful of neck and neck races. new polling shows the democratic incumbent in tight races with their republican challengers like in georgia, where senator raphael warnock is just a few points ahead of the republican herschel walker and it's within the poll's margin of error on those numbers.

and an actual tie back to nevada where the incumbent democrat catherine cortez mast over against agam laxalt is close and democratic senator mark kelly has a small lead over blake masters in arizona. which has shifted on the election denial in the run-up to the election in an effort to try to atact more independent voters. ali velshi spoke with a panel of voters and here is what one republican said on the topic. >> the most important issue in arizona, when i'm voting is protecting the essence of our democracy. where for worse, we're ground zero of this election denier stuff, the fraud, the audit that they did with the ballot in the 2020 elections. i, when i'm deciding who to vote for, it's a disqualifier if the

person isn't 100% honest of the fact that we had an open honest fair and free election. >> you're speaking as a republican. >> i'm speaking, technically a registered republican. >> joining me now from washington is nbc news national political correspondent who actually needs no introduction steve kornacki and also with me from arizona is nbc's vaughn hillyard, good to have you both there. steve, let's go through the numbers. walk us through it on this latest round of polling. which state should we be watching the very closest when it comes to the senate control. >> you're mentioning in, there let's put those numbers in perspective here, so take a look, this is sort of senate battle ground, you have right now, in blue, you have the most vulnerable democratic held seats in red, and you have the most vulnerable republican-held seats, and now remember the senate right now, 50-50, democrats control it because kamala harris breaks the tie so for republicans to gain control,

they have to get a net gain of one seat of the new polling from "the new york times" and seen na, split is into two categories and first looked at three states that are blue on the map, this is where republicans are trying to get that pickup, they need to pick up at least one and on paper in the new round of polling, there is the best shot, nevada, catherine cortez masto and adam laxalt tied at 47, if laxalt wins that could be a pickup for republicans. that is critical. and look at georgia, here this would be a pickup for republicans but the poll has raphael warnock the democrat ahead. key to remember though in georgia, 49, 46, if that's where it ends on election night, it would not be enough for warnock, there is a third party candidate in the race and georgia is a runoff state. and if no one gets to 50%, they go to a runoff on december 6th. we saw this two years ago. it is not impossible to see it again this year. control of the senate comes down to a georgia runoff. not impossible. and then the third democratic held seat for the times poll,

looking at arizona, and there's mark kelly the democratic incumbent ahead of the republican challenger and in this poll, over 50%. so you go back to the map, we just took you through three republican targets, let's say nevada is the one, according to these polls, where they're in the best position. let's say republicans were to get nevada. they get the gain in nevada. they need a gain in one state to get the senate and thatld mean the democrats, and the five red states, they need to pick off and counter one republican gain to keep control of the senate and all year there is one state, one red state where democrats have by far and away the best chance and that is pennsylvania. the republican seat because pat toomey has the senate seat and not running for re-election, it's mehmet oz and john fetterman and here is what the poll looks like there, fetterman by 5 over oz. and very small print at the bottom but i think it is critical, you see when that poll was conducted, october 24 through october 26.

remember, the debate, the only debate, the much-anticipated debate, between these two candidates, was the night of the 25th. so you're not getting a lot of the reaction to that debate. if that debate, which is much discussed, changed this race in any way, you're not necessarily seeing it in this poll. so keep that in mind when you look at it. for democrats, if they lose any, any seats, that they currently hold, they've got to pick one off, and this one is their best chance to get a pick-off. this could be the single most important senate race that's out there right now. >> it sure is. thank you for ironing that all out for us. vaughn, what about the conversation and how it is changing on the campaign trail in arizona as the race has come down to the wire there. >> right, black masters has actually tied himself to kari lake the candidate for governor, the republican candidate, who is consistent consistently outpolled him in terms of support over the last many months, we were with them on

saturday night and this is where another rally will be, a town hall, i should say, about an hour from now, and when you are looking at these numbers here, it is important to understand the role that mark kelly plays in this here. we're talking about somebody who in 2020 along with joe biden was able to rather narrowly pull off a victory in a long time conservative state. that is where you have seen him play defense on issues largely from immigration which he told me that, look, washington has failed arizona for a decade now. and when it comes to the economy, he says, look, on issues from infrastructure package, to child care, to health care rights, to ultimately to the chips act that passed, largely because of democratic support, and the ability to get some republicans on board, he said, well, yes, inflation has risen, over the course of the last two years, it's important to look at the steps democrats have taken, largely playing defense here but then you see on the other end, blake masters trying to hit those vulnerabilities and distance themselves largely from

the election conspiracy theories, over the last couple of months and distance themselves on the abortion issue and at one point he called for a national abortion ban, you have seen him largely try to be more open to a more moderate if you may law that is currently on the books here in arizona. >> vaughn hilliard, thank you very much. we appreciate both of you in fact. and relative to steve, all six episodes of the podcast request, the revolution of steve kornacki, all available to you, scan the qr code on your screen you that will see any second or listen to the trailer and follow the revolution of steve kornacki, wherever you get your podcast. there's the qr code for you. coming up, russian forces launch a new wave of attacks on the capital of ukraine leaving 80% of the city without water. live on the ground in kyiv. first the latest on the investigation of a halloween crowd surge in south korea. outha s n with rybelsus®.

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i've seen people and debris everywhere. >> people coming in. i lost my friend. >> tourists in south korea

mourning the tragic loss of life this weekend, describing to nbc news the carnage they witnessed after that deadly surge at a halloween street party that killed more than 150 people including two americans. police admitted to crowd control errors on monday and the police have vowed to investigate the incident. tens of thousands of people had packed the streets, with survivors saying it was so crowded that it was hard to move or even breathe. the majority of the victims were in their teens and 20s. joining me now is local journalist and tokyo bureau chief, it is heart breaking with all of this, the numbers are staggering, what are authorities in seoul saying today as to how this happened? >> reporter: well, alex, i think south korea, the authorities are still struggling to process how many young lives and most of them in their teens and 20s, were lost over the weekend, twice as many women as men were killed in this tragedy, and thousands were packed so close

together in a narrow alley that they were literally crushed. toppling over each other. down a slope. south korea is asking why more police weren't there to control the crowds, and the police chaef chief saying today and apologizing that the officers on the scene couldn't detect that there was a surge of people saying the focus was on crime prevention rather than crowd control. halloween has gotten very popular in south korea in the last few years and people are saying the police should have known it could get this busy after two years of very strict covid restrictions. 26 foreigners died in the tragedy. including two americans. both in their 20s. they were both in seoul on a study abroad program for their respective universities. 48 hours after this tragedy, more than 30 are still in serious condition. the pavement near the area where this disaster happened is turned into a makeshift alter. people are coming by to lay flowers and to leave drinks

which is the tradition in south korea. this has been a tragedy for south korea and after just six months in office, possibly a defining moment for the south korean president. alex? >> it is a heart break for sure, those two american families, having to get that word about their students, their loved ones, just studying overseas. thank you very much. a new wave of russian attacks on kyiv today, 80% of consumers there no longer have access to water according to a utilities company. officials say that at least 18 power plants were hit across the country, knocking out power, and go to molly hunter joining us from kyiv with the very latest. and russia attacking ukraine's infrastructure and how are officials there responding? >> yes, that's right. attacking critical infrastructure, which in itself, you know, can even be a critical target, one that obviously will be justified, but this is hurting civilians, when you attack a power plant, that is directly affecting, as we saw, tens of thousands, hundreds of

thousands in this case in kyiv. so one of the big power plant, one of the big critical infrastructures is a power plant outside of kyiv, almost immediately knocked out 350,000 households of power. by this afternoon, it was down to 270. 270,000. we understand at this hour, everyone has regained full power, and what is happening now, in the capital city, it is that the 12-hour rolling power cuts. we've been talking to our local people here that shows the schedule that the apartments are on, every three hours they lose power for four hours. as far as the water power and the electricity, we got an update, that is down to 40%. earlier today, 80% of the capital is without water. it is now down to 40%. i want to emphasize that this was coordinated. across the country. hitting big cities. hitting the south. hitting the center of the country. hitting the east.

cities that are now without power. and as, well, look, it is a cold, cold night. families that we focused on are really worried about going into a bitter winter without gas, without water, and now, without electricity. >> and for some, they won't be able to survive, that's for sure. molly hunter, thaw, in kyiv. what the supreme court is signaling today about a decades long legal fight on whether or not race should be considered as part of the college admissions process. the latest in the showdown over affirmative action. first midterm momentum, the new warning signs for democrats and the fight for control of the house. l of the house. who's on it with jardiance? we're managing type 2 diabetes and heart risk. we're hittin' the trails between meetings. and putting the brakes on fried foods. jardiance is a once-daily pill that...not only lowers a1c, it goes beyond to reduce the risk of cardiovascular death for adults with type 2 diabetes and known heart disease. and jardiance may help you lose some weight.

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analysis, republicans are poised to retake congress this fall, with a message focused on the economy. joining me now from capitol hill is nbc's ali vitali. welcome. so tell us, republicans have been teasing a red wave in this coming midterm election, a week from tomorrow. is that what is taking shape? and are we seeing these first races and what were once safely democratic districts? >> reporter: well, clearly, republicans feel optimistic with where they are right now. we'll find out in just over a week if they're right. but at this point in the race, following the money is really helpful, both for seeing where the optimism is real, and if you look at where republicans are spending their cash right now, in many of these cases, they're thinking that their majority could go through places that were previously presumed blue, including in new york. watch. >> republicans are feeling the momentum. >> so you're of the mindset it's a red wave. >> absolutely. >> but taking the majority and how big their majority could be depends on the gop flipping

seats in some of the bluest parts of the country. new york state alone has more in play house seats than almost anywhere else. >> we're going to win races in a lot of places you haven't seen. >> that puts congressman sean patrick maloney at the center of it all. >> i'm a gay gite with an interracial family in a district that voted for donald trump. >> he is not just a nail biter of a re-election bat le. it is not news to me that it is a competitive part of the world. >> he is also a guy who is in charge of helping the democrats keep the house, and made tougher by rising costs and a focus on the economy. his opponent says -- >> that's what this election is about. and that's why we're on the verge of winning. >> reporter: now both parties are pouring money into races like this one in the waning days before the election, hoping to sway voters and in maloney's district alone, gop-aligned groups shelled out more than $6 million in the last two weeks. what maloney said to me is republicans are spending money, setting money on fire here. >> this is not a function of

lighting money on fire. this is a function of voters from this district are fed up and they want change. >> reporter: across the map republicans investing in states that have elected democrats for decades. rhode island, connecticut, oregon to name a few. blanketing the air waves. >> it's all on the line. >> democrats focused on contrasts. especially on abortion rights. >> do you think it is overblown. nobody is in jeopardy of having their reproductive health care taken away from them in the state of new york. >> that mindset might explain why these blue state seats are in play for republicans. but democrats are still competitive in red states that already have abortion restrictions. polls show that's where their pro choice messaging is resonating most. >> if they're going have a red wave, how come they're still fighting in the toughest districts for us to hold. >> that time of year where both parties talk a big game. >> you know, this is the

homestretch. >> but when the money, and where they're spending it, speaks the loudest. >> a really fascinating house map, taking shape here, as we head into election day. but look, the other thing that's important to follow, in addition to the money, is the surrogates. where are these parties putting their headliners in the walkup to election day, look no further than how the first lady spent part of her weekend, in sean patrick maloney's district, happens to be my hometown, clearly a sign that this is a place where democrats and republicans both are putting their resources ahead of eave election day. >> that's right, i've forgotten you're new york girl. thank you. senior editor with the cook political report joining me now, david wasserman. good to see you again. so do you think a red wave is possible? probable? or likely, in this midterm election? >> it depends on your definition of a red wave. we think the likely gain is a dozen seats but not the 54 seats that the republicans gained in 1994 or the 63 states gained in

2010. but in this polarized era, that's still enough to tip the house to them. and as ali alluded, there are a lot of vulnerable democratic seats in some pretty blue states and districts. california, new york, connecticut, rhode island, these are where democrats are heading to election day with big problems with open seats and more retirements that are more in the democrats than the republicans. and there are also a number of democratic incumbents who have said things to make themselves more vulnerable. and so a number of them are dealing with redistricting challenges from taking on a whole lot of new constituents under these new lines. >> i'm hoping you can clear this up as we head state by state and bellwether races. we will start with pennsylvania's eighth district. the latest "new york times" polling shows the incumbent democrat matt cartwright is ahead but specifically leading

the trump endorsed candidate among trump voters. how is he doing that? >> well, that's not accurate, but he is winning a better share of trump voters than most other democrats in this poll, or most other democratic incumbents. so look, it is one of the 33 races that we have currently in the toss-up column. there is still a lot of uncertainty in the house and usually those are in one party's direction or the other, but democratic numbers are holding um pretty well in pennsylvania, michigan, in kansas, and new hampshire, relative to 2020, where as some democrats are really struggling in the blue states we mentioned. >> okay, so then the perspective is that matt cartwright is doing well, or better than other democrats with trump voters, but not as well as the republican who has been endorsed by donald trump. that's the bottom line on pennsylvania 8? >> correct. >> okay. >> and a competitive statewide

race there. >> sure. >> which looks at democratic turnout from falling through the floor. >> let's move on to michigan. another incumbent fighting off a challenger, michigan's seventh district, slotkin leading the state senator tom barrett. what do you make of that one? >> there is another one of the toss-ups and slotkin is one of the national security democrats from that 2018 wave. she, abigail spanberger, elaine luria, they are really in tight races for re-election, she had to take on a whole new constituents in redistricting but she is benefitting from an opponent, tom barrett, who has a voting record in the state capitol and voted against tax incentives for gm in that district. >> you mentioned connecticut. let's go to the connecticut fifth district. you have congressman jahana hayes and george logan, the republican challenger. neck and neck there. what does this race tell us? >> this is a race that biden carried by 10 points in 2020, so

it shouldn't be a place that democrats are sweating. and yet, hayes, on a zoom call, in the spring, said that democrats were single handedly responsible for saving the economy and she thought that the country's economic woes were exaggerate and of course republicans are using that footage in an ad attacking her with voters incredulously reacting to that statement and running against a black republican who describes himself as pro joyce, and so the polling in this -- pro choice, and so the polling in this race looks very, very tight. >> david wasserman, thank you. we have some breaking news as promised. in the investigation into paul pelosi's assault. federal prosecutors in san francisco have just field two charges against david depape alleging kidnapping and threatening or injuring a family member. joining us from outside the justice department is nbc's ken dilanian to give us the details. i know this is, as you expected,

talk about where this goes from here. >> that's right, alex. so these charges, just so people understand are filed in parallel with the state charges that we expect today from the san francisco district attorney, and that d.a. is going to file attempted murder charges, we're told. these two charges, though, are very serious, and the one you mentioned about attempting to injure an immediate family member of a federal official, it carries a maximum sentence of up to 30 years in prison. and depape is charged also with attempted kidnapping. in the news release announcing the filing of this federal complaint, the d.o.j. lays out the facts of the case, most of which we already know, but they add once officers arrested depape, they seized from him a roll of tape, white rope, a second hammer, a pair of rubber and cloth gloves and zip ties from the crime scene. so further evidence that he came to that residence with a plan.

and they recount the time line, as we understand it, which is that he broke, depape broke into the residence, came up to the pelosi bedroom, confronted pelosi there, and pelosi managed to call 911, and officers arrived within minutes, witnessed the two struggling over the hammer, and then they say that depape struck mr. pelosi with the hammer, injuring him. so that, so but very serious and important charges. there the federal government deciding that they needed to weigh in on this assault of the husband of the speaker of the house. >> absolutely. and real quick, can you expect state charges to be filed today as well? >> that's right. the district attorney is expected to file attempted murder charges, assault with a deadly weapon, elder abuse, and it's not clear which of these proceedings would go first, how it's all going to work out, different crimes obviously, but the weight of, the full weight of law enforcement and the justice system, coming down on

the head of david depape. >> two federal charges, attempted kidnapping and a crime to assault a family member of a top official. thank you very much. is the supreme court on the verge of looking at affirmative action? action hi, susan. honey. yeah. i respect that. but that cough looks pretty bad. try this robitussin honey. the real honey you love, plus the powerful cough relief you need. mind if i root through your trash? robitussin. the only brand with real honeyand elderberry. the hiring process used to be the death of me. but with upwork... with upwork the hiring process is fast and flexible. behold... all that talent! ♪ this is how we work now ♪ research shows that people remember ads with young people having a good time. so to help you remember that liberty mutual customizes your home insurance, here's a pool party.

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it has helped me an awful lot. prevagen. healthier brain. better life. the supreme court is hearing oral arguments in two cases challenging affirm tive action in higher education at the university of north carolina and harvard, and whether the universities race conscious policies, which according to the schools foster diverse student bodies, are constitutional or discriminatory. in both cases, lower courts ruled in favor of the universities, based on decades of precedent upheld over the years by narrow court majorities, but now, there is a good chance that the conservative super majority on the court could overrule some or all of those precedents. joining me now is nbc's yamiche

alcindor. welcome. what have we heard from the justices on this? >> it is a big day on the supreme court. an historic day as justices are hearing oral arguments on two cases that are centered on affirmative action and the critical case whether race should be allowed to factor in when college and universities are looking at which to admit, and a group against affirmative action, suing harvard university and the university of north carolina and they're in court, they're in court all day. what we heard from justices are both pointed questions as well as contentious exchanges. take a listen to what justice alito had to say to one of the lawyers. >> why do you have these boxes? why do you give the student the opportunity to say, this one thing about me, i'm hispanic, i'm african american, i'm asian, what does that in itself tell you? >> we think that it can, in context, on an individualized basis, programs perhaps not in

every case but some cases give important information about where that person is coming from, and what the experience has been. they say on page 53 of the brief race says nothing about who you are and we don't think that is true if you look at american society as it exists. >> and asking questions why race should be factored in and those against it, it is discriminatory against asians and white citizens in particular, to support race, and the supporters of affirmative action, this is critical to building diverse communities including the universities today. and i want to bridge unthat judge ketanji brown jackson, who heard the first set of oral arguments dealing with the university of north carolina, she recused heard from the harvard university portion because she was part of harford university's leadership at one point. she was really questioning about why it is okay for legacy cases,

whose parents or grandparents have gone to a university and that that is factored in but not an african american student whose ancestors may have left out or barred from a university. >> she makes a good point on that one. thank you very much. it is a big day there. joining me right now is co-host of the sisters in law podcast and msnbc political analyst, kimberly, welcome. three of the more senior conservatives chief justice john roberts and justices clarence thomas and samuel alito. they have previously dissented when the court upheld affirmative action programs and they're joined now by three relatively new trunt appointees of the court decided to take these cases, it was not forced to, what signal is the court sending by doing it? >> i think that is a clear signal, that the court has an appetite to overturn the previous precedents that upheld if only by a slender, a very small thread, previous affirmative action policies that are nearly identical to the ones at issue today. and i think what we saw during

oral arguments today, it makes me think that this could be the beginning, and not the end. there were questions asked about well, what is considered a proxy for race? meaning that maybe these are other factors that could also be barred from being considered if race is, too things like whether or not you're a descendant of a slave, whether you live in a certain place, or you have these backgrounds. not only might these things tell you what kind of a person you are, and what an applicant is, it can signal your race, and even when justice kagan asked if these things can be considered in employment, would that be permissible and the attorney suggested that it could. and i will be looking ahead to see where the reparation program would be challenged and inclusion of employment policies in the public sector, would it be challenged and the military, the point brought up by the solicitor general, it makes it rotc programs to be diverse, the chief justice admonished saying

she might not want to make that argument there lest those rotc programs be bound by the decision of the court and affirmative action. i think are think we will see more challenges to race consideration across the board. >> it is a very slippery slope. let me ask you about these differences with what the justices are doing with race-based admissions and race-conscious admissions. let's play part of what justice kagan said to the harvard case just a little while ago. >> everybody would rather achieve all our racial diversity goals through race neutral means. everybody would rather that. and that's certainly what our cases say you have to do. the question is, when the race neutral means don't get you there, are you prevented from taking race into account in all of those ways that i said? and i could add a dozen more. when race neutral means can't get you there, don't get you there, when you tried and tried, and they still won't get you there, can you go race

conscious? >> i don't believe so, justice kagan. >> so when we consider what the courts have allowed, and banned, where do things stand on how race and diversity are ultimately evaluated right now? >> well, i think what is going to happen, what we saw in arguments today, is the idea that the consideration of race at all, in itself, is something that the court has previously called dangerous. something that the court has put a time limit on. for example. in the case, the 25-year time limit on these policies. there is this idea that considering race is negative at heart. and that it could harm students in these cases allegedly white and asian students, but they're not taking into account at all the state of the country, where systemic racism against these groups exists all around. they want this to be purely race neutral, in a world that is not race neutral. and i think that's what justice kagan was getting at, that that is probably going to be impossible.

but it was an impossible test to meet from the beginning. and that's why we're here. >> i'm glad you're here, kimberly, thanks so much for joining us on this very, very important topic. that is it for me today. katy is back tomorrow. i will see you at 11:00 a.m. eastern tomorrow. hallie jackson picks up our coverage next. hallie jackson picks up our coverage next. the most epic sandwich roster ever created. ♪♪ it's subway's biggest refresh yet! skin your face will envy? with olay hyaluronic body lotion 95% of women had visibly-smoother skin. be fearless with olay hyaluronic body lotion and body wash.

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