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on this new our, republicans are eager to reshape the nation's, could the second term? a significant policy reversal. and congresswoman sommer lee on the fight for trans right at a time when the trans community is at its most vulnerable. i am melissa marino, let's do this. this. the most significant impact of the first trump administration and aspects of it that may have the most long- lasting ramifications for american society was the impact on the federal judiciary.

within a few years, it gutted affirmative action it essentially made office of the president above the law and that is not all. during the first trump administration, stocking the lower federal reports was also a priority and the trump administration worked with the heritage foundation, the federal society and senate republicans to name 234 federal judges. a move that is completely reshaped the federal judiciary. so, with donald trump back in office in republicans holding a clear majority in the senate, republicans are salivating at the idea of dominating the judiciary for decades to come. in terms of the high court, all eyes are on the two oldest conservative justices, clarence thomas and clarence, if they were tired donald trump would have the opportunity to nominate their successors

making trump the first president since franklin roosevelt to have appointed a majority to the high court, the 74-year-old poured some cold water on the speculation this week when sources close to told the wall street journal he has no plans to retire. despite these disclaimers it seems like some of his hopefuls are polishing their resumes. in a recent interview with the conspiracy policy blog, the express skepticism of birth right citizenship. regardless of who sits on the high court, the change in the presidential election will certainly impact the cases presented to the court. under the new trump administration the federal government is likely to change its position on a number of cases that the court will hear this term.

issues involving ghost guns and immigration. on thursday, donald trump announced that john sauer will be his choice for solicitor general, that is the lawyer who represents the united states government before the supreme court. he is the lawyer who represented trump. he argued for trump in trump's attempt to overturn the $454 million judgment attained in the fraud case brought by leticia james. we have the host of the best politics podcast for vanity fair, also with us is mark joseph stern covering the courts and law at slate and finally last but not least, leah littman professor of law at the university of michigan and my cohost. mark, you first, if either of

them will stepped down they would be replaced by younger conservatives, what would the impact be on these new nominations if they should happen on the court that is already pretty far to the right? >> first of all and most obviously, it would log in the conservative majority for something like 20 to 30 more years. trump is looking to put someone in his 40s early 50s in his place, that would mean that we would spend another generation almost certainly with at least five and quite possibly six conservatives in charge of this court. it would mean that democratic dreams of shifting the court back to the center or even back centerleft would vanish more or less overnight and there would be a kind of new gravitational center on the court. alito and thomas are happy to be in the center on their own

on the fringe right wing, they don't try to build coalitions. i think having younger gen x justices who would work with barrett and brett kavanaugh could shift the court right word just by creating a new dynamic. instead of having them bitter and angry and expressing their cello opinions, you might have five or six justices all willing to join together and shift the court right word. when they are in their 50s, they are all speaking the same language, they all came up in the same federalist society. they have a shared vision that they are going to pursue together. >> let's talk a little bit about the biden administration. one of the key points was to try to counteract with the trump administration had done and right now there are currently about 20 or so judicial nominations that are pending at the senate. and the democrats push these

nominations through and if they are successful in doing so, what would be the consequences? >> they absolutely can if they grow a backbone and are willing to do so they are handing them over to donald trump and we know the kind of point he is, one of the judges he appointed during the last presidency interfered with the classified document charges, another was matthew who of course order judicially a nationwide ban on medication abortion two years and the biden administration would be catastrophic if the biden administration were to leave these vacancies open for the trump administration. i think that is particularly true for the district courts in the district of columbia which of course is a court where a lot of litigation against the government is brought and defied and allowed donald trump to fill vacancies in the

district court and the district of columbia which is really a lot of litigation for the government that would be really, really bad. >> speaking of really, really bad, trump has had john sauer, he argued the presidential immunity case, in fact he was a lawyer who is asked if the president could be criminally prosecuted and here is his answer, take a listen. >> could a president who ordered them to assassinate a political rival was not impeached. >> if he were impeached, he would be convicted first >> your answer is no? >> my answer is qualified yes. >> what you make of this, molly, what are your thoughts on this nomination? this is the lawyer that is going to represent the federal government. >> at least he is a lawyer,

some of these cabinet members are not, rfk jr. is not a doctor. this is where we are and i think there are, there's only so many opportunities for america to protect themselves and they just have to sort of figure out the people who are going to be the most you know, disturbing to the applecart, this guy i mean, ideologically not a match but you know, there are only so many choices and some of these appointments really will end the federal agency there being tasked to run. >> so, they will have the authority to represent the federal government of the supreme court and to shape the

administrations positions before the court, there are a number of cases already that are pending before the court this term that involve the federal government, how will this change in administration will affect the litigation that is currently ongoing? including the cases like gender affirming care to minors case that will be heard in december? >> whenever there is a change in administration, the new administration can always indicate to the court that they are changing positions from the last administration and we can expect the trump administration to do so particularly in the case you just touched on, the trump campaign and many republican campaigns largely ran on a campaign of bashing transgender individuals so the biden administration have asked the supreme court to review a lower. i would expect john sauer to quickly note the change in the administrations position and

sauer is no stranger. he filed a motion to intervene in the supreme court to overturn the 2020 election. so now, that could very well end up being a physician of the federal government for the supreme court. >> mark, this court served as a bulwark, it was a 5-4 majority now it is a 6-3 super majority, what are the prospects of this court serving as a restraint on executive power in the second trump administration, is that even on the table or do you think all is lost? >> i was in the process of that is pretty dismal. this is a court that has consistently blocked bidens policies. not on legal grounds but on the principle that it is too much,

it's too big, it's too progressive, we can't let the president do that. and yet consistently under trump allowed the white house to push through extreme policies including the entry been. i think we will see a similar kind of schizophrenia in the court when the white house flips from biden back to trump. the conservative justice made up out of thin air as a pretax. they think they're just going to go away and this court will greenlight and rubberstamp everything trump wants her almost everything trump wants because trump and this court are very much in deep ideological alignment with each other and they want the country to move in the same direction they will interpret this election as a mandate for both institutions, both the presidency and the judiciary to push as hard as possible. >> thanks for joining us with those insights, molly, you are

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would you take steps to put things into recess so those appointments can happen? >> i believe in the principle of a president being able to choose his team. we will see how it plays out. >> is that something you would support? >> if it became the last option but if that's what we have to do to get the confirmation then absolutely let's do it. >> that was republican house speaker both signaling their support for donald trump bypassing the process of senate advice and consent and using

recess appointments to ram through the controversial cabinet picks. the president-elect is still pressuring senators to advocate their constitutionally prescribed role so that he can ensure that controversial picks will be successfully installed to his cabinet. trump could effectively begin his term not by governing but by ruling. leah littman is back with me to break this down. so, leah, class is in session. can you please explain to our viewers what recess assessments are and why the process of this is sounding alarm bells among constitutional scholars? >> it refers to the presidents ability to make appointments

that would otherwise require senate confirmation during a recess, historically they were used back when transportation wasn't great. back in the 17- 1800s. you can get all of the senators to washington, d.c. but you still need these cabinets to be filled. in the situation where you didn't actually have, over time some presidents started to experiment with recess appointments. when their party didn't control the senate in the senate therefore sometimes refused to confirm their desired nominees to various positions but donald trump is taking this a step further because he is about to begin the presidency with his party controlling the senate and not by a small margin, right now democrats have a very

small majority in the senate, donald trump is going to have a cushion of several seats. he is pioneering a new frontier of recess appointments that basically allow him to circumvent any approval whatsoever even from within his party in order to fill his cabinet positions. and of course based on who he is selecting it is no surprise that he is trying this out. if anyone might fail to garner a majority of votes in the republican senate, it is probably not gates. this is someone who is literally a target or subject of investigation into sex trafficking by the department of justice was now excessively -- extensively going to be leading. that is what he has put up for attorney general. >> if he is successful in appointing some of these controversial picks by using the appointments rather than

the consent process i imagine there will be a lawsuit and eventually the issue would end up in the supreme court. if that happens, what you think the conservative super majority of the court will do with this question about the use of the recess appointments in this context? >> i can tell you at some of the republican justices of said about recess appointments thus far specifically back when they heard a major appointment case, justices thomas and alito and the chief justice joined a separate writing by then justice scalia that said they couldn't have the power to fill vacancies that did not themselves arise during the recess. >> that is an obama appointment, as i right? >> yes exactly. so there the republican justices would've limited and democratic presidents ability to use an appointment power i

am not at all confident that they would restrain donald trump's effort to try to test the scope of the recess appointment power and experiment with whether you can force the senate into recess and thereby circumvent the consent process in general as well as his own party, it is a republican senate by going into adjournment, i think it's very possible. donald trump is basically asking the party to bend the knee and testing how far they will let him go to take away their powers, if the senate let them do this, there is a possibility that the supreme court would as well. >> all right, thank you so much for those insights. coming up next, president biden policy shift, he is now allowing ukraine to use u.s. arms to strike inside russia. that is next.

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we are following breaking news tonight that president biden has authorized the use of u.s. arms by ukraine inside of russia, this authorized, this is -- has authorized long range weapons, they said the weapons will be used in limited strikes but it marks a u.s. policy shift right at the tail end of bidens 10 year in office. >> reporter: good evening from rio where president biden is on what appears to be one of his last laps on the world stage. and also we have seen him make a little history already and there is some policy shift that is certainly getting tension here and around the world. first of all, president biden according to two officials has

authorized a shift in the policy toward ukraine. giving permission for ukraine to use some american-made weapons for limited long-term strikes that reach inside russia, that is a change because until now, president biden has authorized the use of american-made weapons on the ukrainian battlefield trying to prevent a wider war but there has been a change on the other side where north korea has sent thousands of its own troops to help russia and that has changed the dynamic. according to officials, this limited strike has been approved but, because of all of the sensitivities, the white house and the pentagon are not discussing it openly. while he is here in this region, president biden made a little history today, he is the first sitting u.s. president to tour the amazon rain forest, it was more than just a taurus moment, he was talking about significant policy and u.s. investment in conservation in

clean energy. it has been one of the more direct times we have seen president biden acknowledge the incoming administration. talks about the fact that the changes coming it is certainly an undercurrent of the meetings he has has here -- had here. in brazil talking about u.s. relationships with good allies. and the recognition that in just over 60 days there will be a new american president who has a different approach and the president wants to have as much stability with these relations while he can when there is only one president at a time. >> that with kelly o'donnell. on friday, former trump chief of staff publicly offered this advice to president-elect donald trump.

>> i think he has to be recalled to active duty and i think a military court-martial has to be called and mark millie has to be brought up in charges. >> that interview was from friday night, just 24 hours later, we got news that nbc news had explicitly -- exclusively reported that they were making a list of senior current military officers who were directly involved in the 2021 afghanistan withdrawal and exploring whether those individuals could be court- martialed for their involvement in the withdrawal. a person with knowledge of the plan told nbc news that, quote, they are taking it very seriously. nbc news has reached out to the trump transition team for comment, they have yet to response -- respond.

joe, let me go to you first, it is not unprecedented for there to be criticism and subsequent investigations of military action. more often than not, the criticism is challenged and channeled through congressional hearings like we saw in benghazi. what you make of this rumor that the incoming administration is exploring using the military justice system and courts-martial in the context of afghanistan withdrawal? >> i don't think they will get very far under the uniform code of military justice, you cannot be court-martialed for actions that you took that were lawful. you were in criminal cases need some facts to start a case and right now there is nothing that i am aware of that any general has done that would justify a recall to active duty. it is possible under the law.

i don't think it was justified here and that this could also be viewed as undue command influence if it happens because the president would be exerting undue command influence by ordering any kind of action against a general. >> let me follow up with you on that, hear me out, what if this isn't about pressing a legal case, what if it is simply about cultivating an atmosphere of fear among military personnel and basically getting them to bend the knee? we have talked about the ways in which autocrats take power. is this a play to gauge how he can take control of the military? >> i fear that it may be. this is not an unreasonable place to go in terms of what the transition team is doing,

what the president-elect has said, what project 2025 says, the whole entire concept of a unitary executive is something that is an issue here and i think that they are going to the place where the president, if it happens after the inauguration would get the support or having absolutely no guard rails. there are guard rails right now and some of the guardrails would be that if he orders somebody to do something that is unlawful, they could be court-martialed for following that order. the immunity that he may have does not protect the people who carry out his unlawful orders and so, i think we do have at least some protection against outrageous actions and orders from the president but it depends on the strength and

courage of military officers, my service in the pentagon makes me trust military officers anonymously but then you have a dod who would not be following that not just because she has been qualified with past experience but because of his attitude toward women in the military and women in combat because of his allegations of sexual assault for which he admits he has paid someone although he denies that he was guilty because of his tattoos that indicate a far right position which forced him out of the military because of those tattoos so i think we have a combination, it is one of those whirlwinds of bad things coming together and we

are going to have to all work to make sure that these things don't happen. >> molly, let's bring you in on steve bannon he is a highly influential figure in trumps world in 24 hours after he demands a court-martial, we get this news from the trump transition team, what you make of this? who is calling the shots here? >> i think that what jill was saying was very smart. this is going to be a question of people standing up for what is right. we saw this in 2016. this is a moment in american life where there is this, we don't know what is going to happen with the government that comes in but there is an opportunity here for people to do the right thing. we saw this last time there were whistleblowers, people came forward they did the right thing. they know that prosecuting political enemies is not an

appropriate way for the government to act, i do think there are so many people in this federal government to her in the job because they want to work in the government's not in private practice, i really do think one of the sort of very few bulwarks that we have at this moment is going to be federal employees. they cannot survive if people do the right thing and stick to their beliefs and i think we just have to hope that that is what happens. >> and breaking news, earlier tonight donald trump what after retired and sulser -- ann

slezer. is this the new normal that we just prosecute people that think different from us? >> she is just trying to do her job. we saw this happen in 2016 and this is the going after, this is what mccarthy did to my grandfather, this is what we can expect a lot more of which is why all of us need to guard ourselves and stay brave because this is about making people afraid. >> is this the new normal? is this what we can expect? is this the second term? >> yes, i'm afraid it is which is why it is so important for state attorneys general to do the planning they are doing to

protect the rights of citizens against these kinds of acts. i want to just add when you are asking about people afraid, people are afraid, it is not just at the top levels. if you talk to people at mid- level and the federal government, they are afraid. i'm seeing people saying well i better start looking for another job because i'm going to be fired because the president-elect is trying to get only people who will obey him. loyalty is all that matters. >> thanks so much. still to come, the stakes for trans right and the democrats promised to protect them. that is up next. of giving back.

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think of what we could do... together. transgender awareness week is a call to uplift the trans community and to memorialize those who have been victims of trans-public violence. this year's observance comes at an especially difficult time. just hours after donald trump won the presidential election, crisis hotlines that serve lgbtq plus people recorded a staggering uptick in calls. the trevor project that supports lgbtq plus youth says it registered a nearly 700%

increase in calls. it is the end result of a years long campaign by the republican party to demonize lgbtq plus community especially trans people. it is far from over. >> the democrats are talking about the scrutiny of donald trump's picks. we can talk about rachel, the assistant secretary of hhs, i think that is a pretty controversial pick from whatever pronoun he or she decides to use. >> to be very clear, mullen was asked about the qualifications of trumps cabinet picks. the question had actually nothing to do with pronouns or gender identity. none of this is new from republicans but unfortunately some democrats seem to be taking the bait and internalizing the gop talking point that defending trans rights cost them the election.

days after trumps victory, ann slezer said, the democrats -- congressman seth moulton also chimed in claiming democrats are, quote, out of touch on the issue. he told the times, i have two little girls, i don't want them getting run over on a playing field by a male or formerly male athletes, but as a democrat i am supposed to be afraid to say that. moulton then double down on that view during this interview on msnbc with alex witt. >> i stand by my position, maybe i didn't get all the words exactly right but the point is, that the backlash i've received proves my point that we can't even have these discussions as a party. >> there are many theories as to why vice president harris lost and everyone has their own

prescriptions for what the democratic party needs to fix in order to better connect with voters. but, throwing a marginalized community under the bus, one that is already under attack by the gop doesn't seem like the way to do it. speaking of seeing and connecting with communities, it is worth noting that 86% of lgbtq plus voters went to the polls and tried to vote harrison's office. in fact, they are an increasingly loyal constituents for democrats. yet, republicans spent nearly 215 million on anti-trans adds many false claims that trans rights will somehow be at the expense of everyone else's rights. project 2025 is a 900 plus page playbook of the new trump

administration, it is literally riddled with proposals to further marginalize the lgbtq plus community including and especially trans person. that means democrats will have to answer the call and be champions for the community they have for so long claimed to represent. one democrat is already doing that, he's doing it from a deep red state no less. following trumps win, andy from kentucky not by blaming trans people but by further touting his support for them. he said, quote, as governor, i have vetoed numerous anti-lgbtq and anti-choice bills yet i still beat mr. trump's handpicked candidate last fall,". hours ago, he spoke with reverend al sharpton on the snap work. he reiterated his commitment to lgbtq plus rights. >> when i vetoed the nastiest anti-lgbtq bill, i talked about

it i said my faith teaches me that every child is a child of god so i was going to stand up for those kids. >> when we come back after the break, i will be speaking about all of this and more with democratic congress woman sommer lee of pennsylvania, that as of next. he's melting! oh jeez... nooo... oh gaa... only pay for what you need. ♪ liberty, liberty, liberty, liberty ♪

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administration. even some of the parties into embracing the view that fighting for trans rights cost democrats the election, since 2021, at least 177 anti- transgender bills have become law and states across the country, according to the trans legislation tracker that this time around, trans activists are preparing for much worse. donald trump's outline of his policies and the conservative blueprint include plans to limit healthcare funding for gender affirming care for minors and adults. trump has also signaled that he would weapon eyes title ix to bend trans athletes from competing in sports and that he would rollback policies that would protect trans youth from discrimination.

thanks for joining us, it has been noted that crisis calls from lgbtq plus youth spiked 700% after election day and many are rightfully scared of what is coming under this new administration, what are you hearing from your constituents in your district? >> similarly i think after the selection 70 marginalized groups are worried and concerned, rightfully so, we just watched marching through ohio and we've seen how emboldened some of the most bigoted sectors of our society are on social media, there in real life and also legislators, a lot of those folks now walk the halls of congress and statehouses so i think there is rightfully a lot of fear and apprehension about what is to come but mostly because there doesn't seem to be guard rails in place any longer where we had maybe a president or a governor or split houses, we are seeing less and less of

that and we've seen our system stress tested and we failed which means that this marginalized population really feels like they can't really look to their government for support or for protection. >> $215 million spent on anti- trans tv ads, how do you work to combat these hateful messages and what you take of your colleagues who seem to be embracing the view that the democrats are out of touch? out of touch to such a degree that it costs the election. >> the reality is is that there is always going to be a punching bag because that's what the republicans play off of. they love wedge issues that they can embed on to target a subsection of our society that

feels like this is something that is bigger than it is. that is not how we win, we win by fighting back on these tactics. all faiths, religions, whatever it may be can be safe and protected in our party, i think it is a big bait right now to make us, on an issue that the reality is that the publicans won't even run out on next time because they never have to run out on the same wedge issue twice. when i see my colleagues and other people in our coalition willingly throwing in using this particular marginalized group as a punching bag how popular civil rights and voting rights were for black people i think about how popular marriage was for same sex

couples and we recognize that we have to lead from the front and we have always been our better party, or better selves we've been able to do that when we devastated -- demonstrated to our country to our constituents that harm will not come to our groups but we can still focus on the issues that they want addressed. this is a distraction. >> there is a case pending concerning the provision of gender affirming care to minors, if the court should uphold the lower court decision prohibiting gender affirming care, what steps will you in the caucus take to ensure that kind of healthcare for trans youth? >> the reality is is that i can't right now speak to what the caucus is thinking but what we've seen, we have seen so many of our rights eroded, we have to talk about how do we codify protections at the federal level because we don't want to leave this for a state-

by-state basis, a child shouldn't be mistaken -- safe in one state and endangered in another, when we think about federal protections, that is our mandate is to make sure that we are ensuring usual -- equal protection. and we can't shrink from that right now we are seeing this used as a weapon against democrats in swing states are swing districts, this is the moment where we have to show that we are more courageous than polls, we are more courageous than the odds that are going to come out against us i would like to hope that our caucus steps up to the plate and protects this group whether or not they vote that they still are deserving of protection. >> thank you, viewers for making time for us tonight, you

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