that does it for me today but stay right where you are, because there's much more to come on msnbc. on this new hour of ayman. republicans are eager to reshape the judiciary. could the second trump term

make their dreams a reality? plus, president biden okays to ukraine. and fight for trans right, at a time when the trans community is at its most vulnerable. i'm milissa in for ayman. let's do this. the most significant impact of the first trump administration, and indeed, the aspect that may have the most long-lasting ramifications for american society was its impact on the federal judiciary. during his first term in office, donald trump appointed a third of the supreme court to their lifetime appointments. but then a few years, the court overturned. and with its ruling, it

essentially made the office of the president above the law. that's not all. stocking the lower courts with movements was a priority. and the trump administration worked with the harris administration to name 234 federal judges. a judge that has completely reshaped the authority. with donald trump back in office, and republicans holding a clear majority in the senate, republicans are salivating at 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 samuel alito. they are both septo genarians. and if they were to retire, donald trump would have opportunity to nominate their successor, making trump the first since roosevelt to have appointed the majority of the court.

the 74-year-old alito poured cold water on this when he told the wall street journal he has no plans to retire. some seem to nonetheless, be polishing their resumes. in a recent issue, judge james of the fifth circuit, expressed skepticism television birth right citizenship, perhaps, looking to donald trump's campaign promise to end birth right citizenship. the change will certainly impact the cases to the court. the federal government is likely to change its position on a number of cases that the court will hear this term, including cases involving the rights of transgender minors, issues involving ghost guns and immigration. and on thursday, donald trump announced that john sawer will be his choice for solicitor

general. that's the lawier who represents the government. sauer is the man who argued for president trump. he also argued to overturn the $454 million judgment obtained in the civil fraud case, brought by new york attorney general, leticia james. to break this down, we have molly jung fast. host of the fast podcast and special correspondent for ""vanity fair."" also with us is joseph stearns. and finally, leah witman. my cocoast at the strict scrutiny podcast. mark, you first. if either alito or thomas stepped down they would be replaced by someone younger, but that wouldn't shift the balance on the court. what would happen on a court that it already pretty far to

the right? >> so first of all, and most obviously, it would lock in the conservative majority, for something like 20 to 30 years. as you mentioned,alito and thomas are fairly old. but trump would be looking to put someone in his 40s or early 50s in their 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 center, or even back a little bit center left, would vanish more or less overnight. and there would be, i think, also a new gravitational center on the court. alito and thomas are happy to be in dissent or on their own, on the fringe right wing. they don't try to build coalitions. they don't work very hard to bring other justices on board. i think having younger, like gen x justices, who would work

with amy coney barrett and brett kavanaugh, could potentially shift the court right ward. instead of having alito and thomas expressing their bitterness. you might have have some willing to shift the court rightward. when they're in their 50s, they are saying the same thing. they have a shared vision that they're going to pursue together. >> leah, let's talk a little bit about the biden administration. one of the key points the biden administration had done. and right now, there are currently about 20 or so judicial nominations that are pending at the senate. can the democrats push these nominations through during this lame duck period? and if they aren't successful in doing so, what would be the consequences? >> they absolutely can, if they grow a backbone and are willing to do so. i think it's important to fill

the vacancies. of course if they don't, they're handing them over to donald trump. and we know the kind of appointees. one of the people in last session was aileen cannon, who basically stymied the process. another it was matthew kaczmarek who ordered nationwide ban on abortion medication. it would be catastrophic if the biden administration were to leave these open for the trump administration. i think that's particularly true of the court and where cases against the court is brought. if donald allowed to fill the district of columbia, for a lot of litigation against the government. that would be really, really bad. >> speaking of really, really bad, molly, trump has tapped

tom sauer. he was a lawyer asked if the president could be prosecuted for assassination of a political rival. and here is his answer. >> could a president who ordered seal team 6, to assassinate a political rival, who was not impeached, be subject to criminal prosecution? >> if he were convicted first. >> your answer is no. >> that was sauer. what do you make of this? this is the lawyer who is going to represent the federal government in federal court. >> at least he's a lawyer, right? some of these cabinet members are not -- rfk jr. is not a doctor. look. you know, they're -- this is

where we are. and i think there are -- there's only so many opportunities for america to kind of protect itself. and they just have to sort of figure out the people who are going to be the most, you know, disturbing to the apple cart. i think that, you know, this guy -- i mean, idealogeically, idealogeically. but they're being task the to run. >> leah, john sauer will be able to shape positions before the court. there are a number of cases already that are pending before this term that involve the federal government. how will this change inat administration the litigation currently going. including united states versus

skirmetty that will be heard at the court in december. >> whenever there a change in administration. they can change the last administration. and we should expect trump to do so. particularly in the case you noted. of course, the trump campaign and many republican campaigns this last cycle, largely ran on a campaign of bashing transgender individuals. so the biden administration had asked the supreme court to review a lower court. it's highly unlikely that the trump administration would continue that position. i would expect sauer to quickly note the change in administration's position there. and sauer is no stranger to taking the position. he filed a motion to intervene and the complaint to the supreme court overturned the

2020 election. now, that could very well end up being the position of the federal government for the supreme court. >> mark. this court actually served as a bulwark. and to be clear. it was a 5-4 bear conservative majority. now, it's a 6-3 conservative super majority. what are the prospects of this court serving as a restraint on the second trump administration? is that even on the table? or do you think all is lost? >> i would say the prospects of that are pretty dismal, milissa. this is a court that has consistently blocked biden's policies, not on really articulated legal grounds, but on the principle that it's too much, too big, 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 ban on travelers from muslim countries. i think we will see a similar

kind of schizophrenia in the court, on january 20th, when the white house flips from biden back to trump. i think that these doctrines that the conservative justices made up out of thin air, as a pretax to stymie the biden agenda, like the major questions doctrine, think they're going to go away. and this court will green light and rubber stamp everything trump wants or almost everything trump wants. because trump and this court are in deep ideological alignment with each other. both the presidency and judiciary to push as hard as possible. >> that was very grim, mark joseph sterns. thank you. and molly and leah stick around. pushing troism's loyals without senate confirmation. loyals wi senate confirmation.

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would you take steps to put things into recess so those points could happen? >> listen, i believe in the principle of a new president being able to choose his team. there may be a function for that, and we'll have to see how it plays out. >> would you vote to approve recess appointments? is that something you would support? >> yeah. if it became the last option. if that's what we have to do to get the confirmation, then absolutely, let's do it. >> that was republican house speaker mark johnson, and wayne mullen both signaling their support for donald trump bypassing advice of senate consent. and using september resources. it's not enough that republicans have majority in the september. the president-elect is still pressuring senators to abdicate

their constitutionally- prescribed role, so that he can ensure picks like matt gaetz and rfk jr. can be to his cabinet. trump could begin his term, not by governing but by ruling. leah, class is in session. can you please explain to our viewers, what they are. and what the prospect is used to confirm some or all of his picks is sounding the alarm bell for law scholars. >> reporter: recess appointments refers to the president's ability to make appointments to positions that would otherwise require senate confirmation, during recess of the senate. historically, recess were used when transportation wasn't great, back in the 17, 1800s and you couldn't get senators to washington, d.c.

and in that situation, where you didn't actually have the senate back in session, presidents could fill positions, with recess appointments, in order to make sure those jobs could be done. now, over time, some presidents started to experiment with recess appointments. when their party didn't control the senate. and the senate, therefore sometimes refused to confirm their desired nominees to various positions. but donald trump is taking this a step further. because of course, he is about to begin the presidency with his party controlling the senate. and not by a small margin. you know, right now, democrats have just a very small bear majority in the senate. donald trump is going to have a cushion of several seats. and so he is pioneering a new frontier of recess appointments that basically allow him to sir kim vent 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's no surprise that he is trying this out. i mean, if anyone might fail to garner, you know, a majority of votes in the republican senate, it's probably matt gaetz. you know, this was someone who was literally a target or subject of investigation into sex trafficking by the department of justice, who is now essentially going to be leading the department of justice. and that's who donald trump has put up for attorney general. >> if donald trump is successful in appointing some of these controversial cabinet picks by using resourcing rather than the traditional process. i imagine there would be a lawsuit and eventually, the issue would end up in the supreme court. if that happens, what do you think the conservative supermajority of the court will do about the use of the court

in this context? >> i can tell you what some of the republican justices have said about recess appointments thus far. specifically when recess heard a case, mlb verse us noel canning. they joined a separate writing by then-justice scalia, that said presidents cooperate use the recess power to fill vacancies to fill -- >> that was an obama appointment. is that right? >> yes, exactly. that was an obama appointment. there, they would have limited to use the recess power -- i am not restraining donald trump's power. and whether he can force the senate into recess. and thereby circumvent the

process. if the republican senate allows donald trump to get away this by going into adjournment. i think it's possible the numbers of the supreme court would do so as well. donald trump is basically asking his party to bend the knee. and testing how far they will let him go, to take away their powers and aggregate them to himself. the senate -- i think there's a possibility the supreme court would as well. >> leah litman. thank you for those insights. coming up next. president biden's policy shift. he's now using ukraine to strike inside russia. that's up next.

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we are flings breaking news tonight that president biden has authorized the use of arms by ukraine inside of russia. this has authorized ukraine

with u.s.-provided long-range weapons. two u.s. officials say that the weapons will be used in limited strikes. but it marks a u.s. policy shift, right at the tail end of biden's tenure in office. nbc white house correspondent, kelly o'donnell has the latest. >> reporter: good evening from rio. where president biden seems to be on one of his last laps on the world stage. also, we've seen him make history already. and there is policy shift that is seeing tension here and around the world. first, 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's been a change on the other side, where north korea has sent thousands of its own troops to help russia. and this has changed the dynamic. so 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's here in this region. president biden made a little history today. he was the first sitting u.s. president to tour the amazon rain forest. that was more than a tourist moment. he was talking about significant policy and u.s. investment in conservation, in clean energy and climate change, saying he is setting up his successor, with policies and plans, ready to go, if they choose to follow it. it's been one of the more direct times, where we've seen president biden acknowledge. he doesn't talk about mr. trump by name. but talks about the fact that exchange is coming.

that's certainly an undercurrent of the meetings he's had here. for lima peru. and apec. talking about u.s. relationships with good allies. talking about the issues that have been part of his half- everyone of public life. 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, while there is only one president at a time. >> that was kelly o'donnell in rio. on friday, former trump chief of staff, steve bannon, offered this advice to president-elect donald trump. >> i think mark milley has to be recalled to active duty on the afternoon of the 20th. and i think a military tribunal, a court-martial has to be called or impaneled, a court-martial, and mark milley

needs to be called up. >> just 24 hours later, we got news that nbc news had reported that the trump transition team was making a list of current and former u.s. military officers who were involved in the 2021 afghanistan withdrawal, and exploring whether those individuals could be court-martialed for their involvement in the withdrawal. taking it very seriously. nbc news has reached out to the trump transition team for comment. molly jiang jong-fast. and jill, let me go to you first. it's not unprecedented for criticisms. but more often than not that is

channeled. what do you make of this. that the military is united states --ing the courts-martial in context. >> i don't think they'll get far, under the uniform military code of justice, you cannot be court-martialed for actions that you took that were lawful. and you need -- as you would in krainl criminal cases. you need? 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 to recall someone for purposes of court-martial. but i don't think it's 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, jill. hear me out. what if this isn't about pressing legal meritorious case? what if it's simply cultivating an atmosphere of fear and basically getting them to bend their knee. we've heard this before. talked about the ways in which autocrats take power. it's about seizing control of various institutions, including the military? is this a play to gauge how he can take control of the military? >> i fear that it may be. and 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 session is. i think they're going to the place, where the president, if

it happens, after the inauguration, would get the support for having absolutely no guardrails. right now, there are, as you have been talking in the past, there are guardrails 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 unlawful order. the immunity that he may have, does not protect the people who carry out his unlawful orders. 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 enormously. but then you have a dod secta who would not be following that.

i think hexa, as a nominee is one of the worst we'll be looking at. not just because he's not unqualified for supervisory experience. but because of his attitudes toward women in the military and women in combat because of his allegations for sexual assault, for which he admits he paid someone, although he denies it was because he was guilty. and his tattoos forced in a far right position, which forced him out of the military. it is one of those whirlwinds of bad things coming together. and we'll have to all work to make sure these things don't happen. >> molly, let's bring you in. especially, let's talk about steve bannon. he's a highly influential person in trump's world. 24 hours after he was court-

martialed, we get this information from the trump transition team. what do you make of this? who is calling the shots here? >> i think what jill was saying was very smart, that this is going to be a question of people standing up for what is right. and we saw this in 2016. look. this is a moment in american life, where there is this, you know, we don't know what is going to happen, with this government that comes in. but there is an opportunity here for people to do the right thing. and they know, you know, 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. and i do think that there are so many people in this federal government who are in the job because they want to work in the government, because they want to do the right thing. they're not in private practice, where they could

theoretically make more money or have an easier time. so i really do think that one of the sort of very few bulwarks we have at this moment is going to be federal employees. so i think, look. autocracy cannot survive, if people do the right thing and stick to their beliefs. and i think that we just have to hope that that's what happens. >> well, in breaking news, molly, earlier tonight, donald trump went after retired des moines pol pollster ann seltzer, asking her to be investigated. what do you make of this? is this the new normal, where we prosecute, centereds who just believe things that are different from us? >> yeah. i mean, i do hope that no one goes after ann selzer.

she was just a pollster doing her job. this is what mccarthy did to my grandfather. this is what, you know, we can expect a lot more of, which is why all of us need to gird ourselves and, you know, stay brave, right? because this is about making people afraid. >> so, jill, is this our new normal? is this what you can expect from an unleashed donald trump going after the military? after pollsters? is this the second term? >> yes. i'm afraid it is. which is why it is so important for, for example, state attorneys general to do the planning they're doing to protect the rights of citizens against these kinds of acts. and i want to just add, when you're asking about, are people afraid? people are afraid. and it's not just at the top levels. but if you talk to people at midlevel in 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, royalty is all that matters. >> all right, molly jong-fast and jill wine-banks, thanks so much. still to come, the states for trans right. and donald trump's promise to protect them. that's up next. xt.

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transgender awareness week is a call to uplift the trans community and to memorialize those who have been victim of transphobic violence. but this year's observance comes at an especially difficult time. just hours after donald trump won the presidential election. crisis hotlines that serve lgbtq+ received a trigger in calls. the trevor project that supports lgbtq+ eying youth said it received a 700% increase in calls the day after the election. demonizing the lgbtq+ community, especially trans people. it's for from over. here's republican senator mark wayne mullen earlier today. >> democrats are spending so much time talking about the scrutiny of president trump's

picks. and we spend time scrutinizing biden. i think it's a the pretty controversial pick. for whatever pronoun he or he decides to use. >> to be clear, mullin was ask the about trump's cabinet picks. the answer had nothing to do with pronouns or gender identity. none of this is new. but unfortunately, some democrats seem to be taking the bait and internalizing the gop point that this cost them the election. democrat tom suozzi said i don't want to discriminate against anybody but i don't think biological boys should be playing in girls sports. >> moulton chimed in. 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 athlete. moulton then doubled down on that view, during this interview on msnbc with alex witt. >> and i stand by my position. maybe didn't my words all right. but the point is, the backlash i received, proves my point that we can't even have these discussions. >> there are many theories as to why vice president harris lost. and everyone has their description for what the democratic party needs to fix, in order to better connect with voters. and one under attack from the gop, doesn't seem like the way to do it. speaking of seeing and connecting with communities. it's worth noting that 86% of lgbtq+ voters went to the polls and tried to vote harris into

office. in fact, they are an increasingly loyal constituency for the democrats. there's also note that kamala harris never made cornerstone. yet, opinions spent nearly $215 million on ads, many falsely claiming, it would come at the expense of everyone else's rights. for the first 180 days of the new trump administration. and it is literally riddled with proposals to further marginalize. 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. and he's doing it from a deep red state, no less. following trump's win. democratic governor andy

beshare responded, not by blaming transgender people. but by further touting his support for them. in an op ed, beshear wrote, i have vetoed numerous anti- lgbtq+ bills. yet i still beat mr. trump's hand-picked candidate. al sharpton reiterated his commitment to lgbtq+ rights. >> when i veto the nastiest anti-lgbtq+ bill we had ever seen last year in my election year. 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'll be speaking about all of this and more with democratic congresswoman summer lee of pennsylvania. that's up next. that's up next. evan, my guy! you're helping them with savings, right? (♪♪)

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democrats are working to protect the trans community under the incoming trump administration. even as some in the party seem to be embracing the view that fighting for trans rights cost them the election. since 2021, at least 177 anti- transgender bills have become law in states across the country, according to the legislation tracker. about you this time, queer and trans are preparing for much worth. both 47 trump's outline on his campaign website and project 2025, the conservative blueprint for the first 180 days. include healthcare plan for minors and adults. trump has signaled he would weaponize title ix and roll back policies that project lgbtq+ students from harassment and discrimination.

joining me is democratic congresswoman summer lee of pennsylvania. >> it's been noted that crisis calls from lgbtq+ youth spiked 700% after election day. and many are scared over what is coming. what are you hearing from your constituents in your district? >> i mean, similarly. i think after this election, so many are worried. we just watched nazis march through ohio. we see how emboldepped some of the most bigoted sectors of our society are on social media, they are in real life and also legislators. a lot of those folks now walk the halls of congress. and i think there say the loof fear and apprehension about what is to come but mostly

because there doesn't seem to be guardrails. we're seeing less and less of that. and we're seeing our systems tested and we failed. which means that this marginalized population can't look to the government for their support or protection. >> republicans in the last election cycle spent nearly $215 million on anti-trans tv ads. how do you and others work to combat these hateful messages? what do you make of your democratic colleagues that seem to be embracing the view that democrats were out of touch and out of touch to the degree that it cost you the election? >> i think that there are going to be a lot of conversations about what cost us the election. and a lot of those are not going to be in good faith. the reality is, there is always going to be a punching bag. because that's what the republicans play off of. they play off of fear, off of division, they love wedge

issues that they can, in bad faith, run on, to target a subsection of our society that feels like, you know, this is something that it's bigger than it is. but the reality is, that's just not how we win. we win by fighting back against these types of divisive tactics. we win by running away. and doubling down. we are a party and a nation. we're people of all faiths, religions, socioeconomic status, whatever it may be, can be safe and protected in our party. so i think it's a big bait right now, to make us come out on the issue that the reality is, the republicans won't even run next time, because they never have to run on the same wedge issue twice. so when i see my creags and others in our coalition, willingly or throwing this particularly marginalized group, as a punching bag. or throwing them under the bus. i think about how popular civil

rights and voting rights were for black people. ic i think about how marriage was for same-sex couples and we recognize we have to lead from the front. and we've always been better to ourselves, when we demonstrate to our country, our constituents that harm won't come to any of our groups but we can still focus on the issues that everyone cares about. those overarching issues. and this is a distraction. very quickly, before we leave, there is a case pending before the united states supreme court, with the provision of gender-affirming care to minors. if the court were to prohibit gender-affirming fair. what would that do to make sure for trans youth? >> the reality is, i can't right now, speak for what the caucus is thinking. but we've seen these types of attacks am so many of our

rights are eroded. we have to think about how do we codify at the federal level. we don't want to leave this for a state-by-state basis. a child shouldn't be affirmed in one state and endangered in another. right? so when we think about federal protections. that's -- our mandate is to make sure we are ensuring equal protection, ensuring health access to all people. and we can't shrink from that right now. particularly now, as we are seeing this used as a weapon, against democrats in swing states or swing districts. this is the moment where we have to show we are more courageous than polls or the ads coming out against us. it shows what our mettle is. i will like to hope that our caucus stands up to the plate and protects this group that whether or not they vote for us, at the rate that we saw. whether or not they vote, that they still are deserving of protection. >> all right. congresswoman summer lee,

thanks so much for joining us. and thank you, viewers, for making time for us tonight. you can catch ayman here. until we meet again, i'm melissa murray, in for ayman. in every bite. easy to take cough relief, anywhere. chew on relief, chew on a ♪ robitussin ♪

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