0 retirement. after nearly 28 years on the court, breyer will retire in june, allowing president biden to name his replacement and fire up his shrinking support among black voters ahead of the midterms. while democrats still control the senate. this would pea the first conformation in the supreme court justice in the history in a 50/50 equally divided senate. at the south carolina presidential debate, under pressure from congressman clyburn, biden promised to nominate a black woman to the court. >> i'm looking forwardo making sure there's a black woman on the supreme court. that we in fact get every representation. >> also this hour a massive escalation in russia's front line mobilization. war ships in the black sea, tanks rolling across the frozen tundra. multi-front threat sending shock waves through the european capitols. ers and in a letter to the russians proposals for a diplomatic off ramp but a flat rejection of vladimir putin's call of sweeping reversal 06 nato's expansion. and economy rebounded, fuelling more concerns about inflation and a promised fed tightening. i'll talk to someone who's been warning about that since last spring, larry summers and former economic advisor to president obama. and we start with stephen breyer. and we're joined by a former law clerk of justice breyer and at the university of law and sotomayor when she was a district court judge. susan, we've been through conformations but this is going to be historic. so, let's talk about the politics of this nomination. a 50/50 senate. vice president harris is there, of course, to break any tie that does not require 50 votes thanks to mcconnell making the change to filibuster rule to the dismay of democrats but this time it could work to their advantage. potential nominees perhaps led by jackson, who just last june was nominated and confirmed for the appeals court, the d.c. appeals court just below supreme court with republican saying she's qualified for the circuit court. that was lindsey graham and he added elections have consequences. that's what he said yesterday. which means the democrats, technically, if they hold their own, they would hope have even a couple of republicans. including lindsey graham and lisa murkowski, who voted for her just this past june for the circuit court. and two other potential nominees among 19 other black women who have been confirmed by the federal bench by this president. what's at stake with mitchell mcconnell's rule changes and the anger among democrats that a merrick garland never even got a hearing? >> what a big opportunity for president biden. it comes at just the right moment. last week we were talking about how many problems after finishing his first year in office. now he has a chance to make a big statement, a historic step by nominating a black woman for the supreme court. he can unite senate democrats that have been so divided on build back better and other proposals. he can energize the democratic base and do this by fulfilling a campaign promise. sometimes presidents regret promises they made in a debate during the democratic primaries. not in this case. the fact he made this promise and the white house has affirmed he's going to live up to it has smoothed a path ahead for what many hope will be a change in the conversation and reset, perhaps, his presidency. >> we wanted to talk to you, of course, because you clerked for justice breyer. many knew him so well. many are calling him a consensus builder. he's a man of great passion on some issues. he did build consensus. what do you think went into his thinking in retiring now? my own sense would be not political pressure because that would stiffen his spine. >> i definitely agree with you about the political pressure. the word that comes to me about justice breyer and his court is he's a statesman and a real campian and protector of the court. he is so concerned that the court only has the power of the legitimacy, only the trust of the people when it speaks with authority and not in a political register. and i think he takes that really seriously. i really don't think that was likely a big factor in his deliberations. i think there are more personal reasons. he is, as you say, an engaged person with the world and expect he'll continue to be with the law in many different ways in the future as well. >> we know very well that he's an author; i think his scalia lecture at harvard. i would expect the trajectory of the court, in the last year or so. certainly startd before then but certainly in the last year with a 6-3 minority for the more liberal members but also with less ability to move across the lines. there were a number of 5-4 decisions recent that took place because of people like justice kennedy and the chief on obamacare on same-sex marriage. so, he was able and ruth bader ginsburg, they were able to craft these consensus decisions. and they were not as isolated as the three members now are. >> you know, i think it's important to remember justice breyer's been on court for 27 years and been in the minority more often in political terms in all of that time. he joined the rank court, was the junior member for 11 years. longer than anyone but one person in the history of the country. and he's had a real impact because of his willingness to find common ground and consensus building. he is an optimist. he really believes that if we talk to one another, if we have deliberations -- not just talk through the oral argument or through memos but walk down the hall and talk to people. which is something he regularly has done at the court. he thinks that's how you find common ground and persuade and that's how you listen. i think for my expectation is that is still the case today and perhaps there are fewer opportunities for that. one of the things that was so interesting about the rinks court is there were many different coalitions built. i think he was a key partner in many of those. the court is always evolving and each new person who comes and goes really effects the dynamic. his leaving, i think, will leave a hole in that kind of deliberation and dialogue. >> and a huge opportunity for the president, politically, a black woman. potential nominees are u.s. circuit court judge, ketanji brown jackson. we talked about she was just confirmed to the judge under the supreme court. she got three republican votes at the time and a former clerk to justice breyer. also u.s. california supreme court justice leondra kruger and michelle childs, who has a backing of jim clyburn, who spoke about her earlier to the "the washington post" >> i have been discussing michelle childs with the president and his people now for, i guess, at least 13 months. she has, what i call, the kind of background and experiences that we ought to have. i am very, very concerned that we pick on this elitest kind of atmosphere when we pretend the only way you can demonstrate qualifications is to go to certain schools. well, i don't think that's right. >> melissa, he's advocating for a south carolina federal judge. do you think that's dispositive with this white house? >> i don't know if it's dispositive. i would like to push back on representative clyburn's view that own lee the quality of one's school projects a diversity at the court. in fact, all three of these perspective nominees have very diverse work experiences. judge jackson was a public defender before becoming a judge. justice kruger would be the first justice to have state court experience since david suitor and sandra day o'connor. i want to say the fact of going to a public school will be a great asset. we saw that with amy coney barrett who attended schools outside of the ivy league. that's not the only diversity the court should look to. what's important for this pick is we'll have a liberal wing of just three justices and all three of those justices will be women and two of them will be women of color. that will change the intellectual energy and dynamic of the court going forward. >> thanks so much to all of you for starting us off and joining us now, democratic senator, a long-time chair of judiciary and senator a member of the judiciary committee. let's talk about the president's upgzs here. i know senator durbin succeeded you is going to have a zoom meeting with all of you some time today to talk about the calendar. >> i think the calendar has moved rapidly. i know he's had a list he's thought about. the interesting thing here is both president biden and i, as young lawyers on the -- young senators on the judiciary committee, worked with our counsel, stephen breyer. so, we've known him all these years. he and his wife are good friends of my wife and i. this decision of his was not unanticipated. and i know that president biden understands the system as well as anybody. who will move fairly quickly with a nominee. >> senator, you've got one nominee in particular who got three republican votes just this past summer. but do you think there will be a united republican opposition to this and that you're going to have to get the 50 votes in the senate, which you've not been able to garner for some of the domestic priorities? >> significant decision by the president to nominate a black woman. as i said significant. it certainly adds to the diversity of the court to match the diversity in our country. i expect the president to be talking with a number of highly qualified women. there's an abundance of riches. because believe me there are highly qualified black women who can serve on the supreme court. so, that is going to be happening. by the way, andrea, every single one of president biden's judicial nominees have been positively supported by all 50 democrats in the senate. i expect that to continue, particularly for a supreme court nominee. >> senator lehigh, do you think it would be preferable to have a judge, that it would take one weapon away from republican critics? and i want to ask about the typical response on some of the toughest issues, which is precedent rules. but how does a democratic nominee refer to president when that is already clearly in the hands of roe v wade, about to be overturned by a republican majority. >> that's a good question and it will be a difficult way of answering because whoever the nominee is, i'm sure, will say they're committed to [ inaudible ] if the supreme court were suddenly to rule against roe before that seat is filled, well, then the decisive will be that roe is gone. i think that may seem like a big question but it's not going to effect the decision of the senate judiciary committee. i worry, when it becomes just a one-party kind of vote, i think think it's hearding the credibility of the supreme court when such nominees are put in there. i wish we could come back to the time when we come together. i remember mitch mcconnell saying we never do a nominee during a presidential election year. well, of course we do. the democrats were in control, ronald reagan, it was his final year, he nominated anthony kennedy. we all came together and he got 95 votes. we've got to go back for that time because the supreme court has had the respect of the american people. that respect is going away because they're seeing it as a political polarized body. i want to see it come back to where people look at it and say yes, that's the supreme court that it appeal to all of us. >> and in fact, it was that politization that justice breyer wrote against and really rued the way the court was getting, as an institution, was becoming politicized. when we talk about going forward and trying to get these votes together, mitch mcconnell, having said we don't do nominations in an election year, when it was a case of giving merrick garland even a hearing, they confirmed amy coney barrett eight days before an election when 65 million americans had already voted. >> yes. well, the fact that mitch mcconnell is a good hypocrite is not news to any of us. in the meantime, when you talk about starry decis, which is precedent, we have a 6-3 court that is certainly willing to set back decade's long precedents, such as roe v wade. that is not good for the court. that does not legitimize the court. the good decisions based basically on ideological grounds really questions, in my view, the legitimacy of the court, which is why amy coney barrett had to come out and say, i'm paraphrasing, the court is not a bunch of political hacks. you hardly expect that to come out of the mouth of a supreme court justice. we're going to see more of the 63 decisions. that is why you are seeing all of these challenges that will end up to the supreme court and i expect that same-sex marriage will be on the docket at some point and there will be other cases like this that will be decided, basically, on ideological grounds. what i'm looking for is a justice who is fair and impartial. and that's not what we got with, in my view, with the three trump nominees for the supreme court. >> you know steve breyer so well from your years working together, as you point out on the committee as well. and one fact of history is that he got to the federal bench because jimmy carter had an opening, a nominee, and didn't want to go along with ted kennedy, a fellow member of the committee. his initial preference for arch bald cox and came back with the recommendation for the general counsel, steve breyer, supported by straum thurman and at the behest of allen simpson. do i have that history correct? >> that's basically correct. he got strong support. there had been some delay by one senator, who, a democrat, who had been discouraged by the fact that steve breyer had opposedthem review of posing his nominee to a federal court. in fact, i agreed with steve breyer and i helped lead the investigation. but the vast majority of republicans and democrats came together on stephen breyer became judge breyer and later became justice breyer because as senator said, he has the ability to bring people together. he is one of the most remarkable justices i've known and i voted on every single justice since john paul stevens. and he is a remarkable, remarkable juris. >> and a true man of the enlightenment in an age -- linda greenhouse wrote today, which is not an enlightenment age. >> my wife and i like speaking french with him. >> he's such a frank-o-file. i know. taught himself french during lecture breaks in france. always great to have the amaritous chair of judiciary and one of the current newer vibrant members, what a combination. thank you both so very much coming together today. when the president and justice breyer appear at the white house, we'll bring you all their remarks live. and on alert. president biden set to speak directly to the ukrainian president biden set to speak directly to th president as we see a massive escalation in troop deployments. this is msnbc. e escalationn itroop deployments. this is msnbc. i don't know. i think they look good, man. mm, smooth. uh, they are a little tight. like, too tight? 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