will respect breyer's timeline for any official announcement. >> we're coming on the air with breaking news. nbc news learned stephen g. breyer will step down as a justice on the supreme court. >> there's been no announcement from justice breyer. let him make whatever statement he's going to make and i will be happy to talk about it later. >> the president saying he won't talk specifics yet, a matter of respect and decorum, but news this big waits for no one. the u.s. senate gearing up for a major confirmation clash going into the mid-terms. a senator with a vote on the matter joins our special coverage later on tonight's show and white house staff already outlining some of the likely plans. breyer expected to announce his retirement as early as tomorrow officially. reports are he would leave at the end of this term, giving the white house plenty of time to select and push a nominee. now, is that breyer's way of also shaping the timing of his own replacement process? i actually asked him about how justices consider their own replacements. this is in a rare interview in the pandemic era on zoom about two years back. he touched on some of the pressures here. do you think the justices do or should think about who will replace them and their requirement process while they are on the court? >> of course, from time to time you think about it. it's part of the aging process. and it's inevitable. now, you have to -- what you say, we stay out of politics. and really sometimes it's very hard to just stay out. but the more the political fray is hot and so forth, the more we fail. >> just a little insight now he might think about recently and it's about to be plenty hot for biden's first lifetime nomination to the high supreme court. senator schumer vowing to vote in record speed, the high court took under a month for the trump nomination to go to confirmation. now as for the court's direction going from a clinton appointee to back in the day to biden appointee would not be an automatic swing in the competition of the court. that's a contrast to what we know about that can happen with replacements. take, for example, when trump replaced the pick justice ginsburg which moved the court immediately to the right. here's the other thing, biden 2022 could still be a long ways from clinton 1994. biden has a liberal democratic party coalition that is really a long way from what clinton was doing with a centrist party in the '90s. then you have recent history, republicans used raw power to shape the high court with donald trump axies getting three lifetime justices on the court during one term. but many want biden to promote a visionist liberal justice now, scalia from the left, and existential challenges for america on civil rights, authority to combat pandemics and climate change, the same powers it could deploy on behalf of say the pentagon or wall street. now, biden has not detailed a legal profile for his pick but this is a court where 95% of all justices have been white men across history. and biden already made news on that front as a candidate when he vowed to put, if elected, the first black woman on the court. >> we talked about the supreme court. i'm looking forward to making sure there's a black woman on the supreme court to make sure we in fact have every representation. not a joke, not a joke. i would push very hard for that. >> you can see when he made that news in february on that big stage, there were a lot of other candidates -- it was at a time when he was not necessarily the presumptive nominee. well, today he's the president, and you think about how much things change in washington, a few days ago there were a lot of other different stories that were news. now this is the biggest thing facing washington, the white house has said it. and today i can tell you as we report on all of this, the biden white house staff reiterated the value you just heard. we'll have a list of candidates later on. this kind of diversity pledge is unprecedented but, again, it's for a court can that remains one of the most powerful institutions that has diversified the least and the slowest compared to say congress. speaking of congress, this whole clash will be headed right to the senate where republican leader mcconnell has already previously changed the rules that allow four majority votes on these picks. a reminder the filibuster can be tweaked in a change that may now help biden. and the senate is not a place for compromise, we know that. when biden was vice president, that administration's first pick, sonja soet miter got 65 votes. few expect that level of bipartisan here, no matter who biden picks. president obama later learned the hard way tailoring a pick for republicans doesn't even mean they will give you a hearing, let alone any vote. now biden is the president. and the news last week he said, he was still surprised by how obstructionist mcconnell has been and it's biden who must decide how to get ironclad commitments from every single senator in his own party with no room to lose a single vote. and that's where you might say, okay, ari, are we talking about the law or are we talking about senate politics? yeah, we're talking about the reality of the politics who shapes who decides the law. i'm going to tell you straight up, this is a story that broke today. we've all been running around making sense of it. here's the deal. joe biden cannot afford a sequel of the opaque delay process where senators sinema and manchin basically move the ball and the goal posts, or slowed it down, when it was a fight about ending. he cannot afford a backup plan or a strategy where he just hopes a handful of senate republicans might make up for any democratic votes that he loses, either of the names i mentioned, while we're heading into the political fire of the midterms. what's interesting here is that who is in charge of this process right now? because first the democratic party and at large, americans went with someone with a lot of experience, which isn't always popular in politics but across 50 years in government. joe biden has lived through this core process from his youngest days as a senator. you know his first-ever vote for a supreme court nominee? it was all the way back -- we checked -- in 1975 for john paul stevens and that vote was 98-0. boy, times have changed. they say the way to win a majority on a nine-seat supreme court, you have to count to five. when biden entered the senate for confirmation, people were counting to 95 or 90 out of 100. i mentioned scalia, who was what the right wanted, anton scalia was confirmed 98-0 in the '80s, unanimous, including biden, and every or senator. but now tonight i can tell you joe biden faces a senate with a republican party that opposes virtually everything and anything he does and if he does something that they said they supported, they might just reverse themselves too. biden's got to count to 50. as a matter of math, this will not be about appeasing republicans, even those who might claim to have an open mind on these issues. and this won't be about debating mitch mcconnell on substance. it will be about leading his party and any wayward democrats to 50. that's it. to paraphrase jermaine lamar coles teaching and learning math, republicans was now on the path but now look at them pitiful, i'm so good at math, count it up, count it up, count it up, 50. count it, count it up, count it. let's turn to our special guest on a huge breaking news evening, i'm joined by former prosecutor and former mayoral candidate maya wiley and former democratic senator russ feingold who knows these issues and voted overseeing these hearings. i welcome both of you. i start with the biden matrix counting to 50. do you think that's the only way through or should joe biden consider trying to peel off republicans or maybe replacing sinema with a collins? >> thank you, ari. it's exciting day to be on the show. i have a good feeling about this. you absolutely count to 50 but some of the names that have been put around already are people who have received votes from republicans on the judiciary committee. and they are excellent choices, african american women who are already serving in some of the highest courts and there may be other people as well. i think there's a chance here, ari, that the marginal line, if you will, will not apply. i think there's a chance that some republicans will support but the thing that would make it less likely is if they see some squishiness on the democrats' side. >> that's where i want to press you, senator, because you've been in there. it could be interesting to go to 54 or 56, but i'm asking you, and then we'll go to maya after you, what does joe biden need to do to learn from the shift that i documented, where you go from 98 to the 60s to where we are now, because they don't get a do-over, depending on what happens in november? >> i mean, obviously, you have to go to the people that have been the most challenging and you have to get a clear commitment early on and make them stick to it and that's not an easy thing to do but you don't wait around. i have a feeling that these two senators that were extremely unhelpful on some critical issues might want to make themselves well in terms of their relationship within the democratic caucus. and i think i feel good about the possibility of that working but biden has to make that his top priority. >> maya? >> well, i agree with the senator, and, look, it is imperative biden make it his top priority for these very reasons and counting, ari, because the reality is it's clear manchin and sinema voted for many of the black women we've seen on the short list to be judges, that's a good thing. they should be praised for it, reminded of it and they should be reminded of the high qualification for these jurorists and the fact they're highly qualified to sit in the seat. and the very reason not to support one of these nominees, and we don't know who it will be, but the only reason would be partisan. and that is something they simply should be persuaded is not in their own best interest, in the interest of the party or the interest of the country. and let me add one other thing about this, the democrats are a big tent party. it's one of the strengths of the party. and that means that any member who is sitting in congress or any senator sitting in the senate should be paying attention to how it holds together that big tent coalition, and that includes acknowledging we have never had a black woman on the bench, that black women make up only 3% of federal judges, that joe biden has already made history by appointing 42 judges in his first year, getting them through the process. this is no time to blow up that record or blow up the coalition. >> yeah, really interesting, important point. i think maya made such a good point, senator, that we may have lost her camera for a second. i don't know if you know, on the news, if you make a really good point, it just -- it just sizzles out. >> may have been a conspiracy. >> senator, all tech glitches aside, and we're still in the zoom era, i want to read you what senator graham said about this here. he did vote -- to be clear about the record, he did vote for sotomayor and kagan during the obama era. he said if democrats hang together, which he expects, they will have the power to replace breyer without one republican vote. that might sound bitter than it is because he's doing what i did, just saying the situation. he's saying they might win. he's not saying whether he would vote for the person yet and he has a right, of course, to vet the person first. what do you see there from the republican senator perhaps softening the ground for their own side because they don't want to necessarily raise expectations if they're going to lose this going into the midterms? >> i think that's right. i think they know they're going to lose and people like graham may well decide this is not one to fight on. let's not forget, as wonderful of a moment this may be, as we finally break this ridiculous and horrible barrier to not have an african american woman on the supreme court, this isn't enough. this doesn't change the balance. what they did, and lindsey graham was part of it, was steal two seats on the supreme court. they locked in a situation where this new justice would have to be there, two other people, and they have to wait and wait to really protect the law and constitutional rights and rule of law in this country. we have to remind ourselves of that, how they abuse the process. what i'm most excited about, ari, is this president, this senate, richard durbin, the chairman the committee, chuck schumer, majority leader, will show the country once again how this process is properly and fairly done instead of the outrageous theft that occurred when mcconnell and trump pulled that stunt. that's very important, not just for the senate, but it's important for the supreme court to be legitimate, that the process be legitimate. i'm pleased that will happen. >> senator feingold, i want to thank you for kicking off our special coverage. maya sticks around for another piece of this. we will go and look at the top contenders for what we were just discussing, historic nomination to the high court and a little more from my own conversation because justice breyer is someone i have spoken to over the years and we think it's a fitting night to speak to some of that. and a plea deal experts say might put more heat on republican congressman gaetz. that's by the end of the hour. stay with us. by the end of the. by the end of the. stay with us a painful, blistering rash that could interrupt your life for weeks. forget social events and weekend getaways. if you've had chickenpox, the virus that causes shingles is already inside of you. if you're 50 years or older ask your doctor or pharmacist about shingles. hearing is important to living 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playing politics. and they've even saddled our district with a $125 million deficit. our children can't wait for new leadership. here's our chance for a fresh start. on february 15th, please recall school board members collins, lópez and moliga before our kids fall even further behind. welcome back to "the beat with ari melber." this is our special live coverage of a breaking news story, a longtime democratic appointee to the supreme court, justice breyer, now set to retire. and that paves the way for president biden to make his first ever supreme court pick and it's a reminder of how uproarious this can all be. yesterday and last week washington was in a very different place. now this is the story, this is the challenge. joe biden's campaign also had been eyeing the prospect of how this might come about if he were to become president. he pledged -- and this is the first ever in american history to do this -- he would put a black woman on the high court for the first time if elected. >> number one, i commit to if i'm elected president to have an opportunity to appoint someone to the courts, i will appoint the first black woman to the court. it is required they have representation now. it's long overdue. >> that pledge makes the process already different, whether the outcome is ultimately different depends on what comes next. and the democrats say they're ready for the nomination process and we're seeing reports about potential short-list candidates, beginning with judge ketanji brown jackson. she has a background many liberals like as a public defender and she's on basically the second highest court in the lapd after the supreme court, d.c. circuit, where she's got not only united democratic support including manchin and sinema but two republican senators. and she said this last year -- >> one of the things we all observed over this past year is the united states of senator has many resources, but it also has many needs, including the need for skilled lawyers who can defend the rule of law and promote access to justice. >> i care deeply about reaching the right results and doing my best to render reasoned rulings for the benefit of the people who come before me. >> some progressives see her as a person who definitely has the integrity, who talks the talk, rule of law, independence, fairness, but also has a background that suggests she would care about the lives of ordinary people and systemic racism in america. and if you remember judge jackson's name or you remember her rulings, i could tell you one we definitely reported on, so if you follow the news you might have heard about it, she ruled in trump's first impeachment when the doj argued all trump's records should be absolutely immune. that was one of the many bonker claims thrown around in the trump era. judge jackson rejected it and wrote, quote, presidents are not kings. they do not have subjects bound by royalty or blood. another woman you might know, sherrilyn ifill. president of the naacp legal defense fund, she's been on this program and many msnbc shows, because she's established herself as a leading voice in civil rights. here she was speaking to "60 minutes" about race in america. >> race lies at so much of the core of what is problematic in our society today and that is so easily exploitable because we have not had the courage in this country, and particularly most white people have not had the courage to really decide if this is your job every day as a citizen to deal with the fractures ultimately if you don't confront them will destroy us. >> have you noticed ifill speaks differently there, it's because of a different role. she's speaking as a progressive advocate and sometimes litigator, not bound by the rules of active judges, which is what you see with some of the other potential names. for example, judge leondra kruger on the california supreme court, was a deputy solicitor general under obama. like more government conspiracy and naacp advocacy. and then judge michelle childs, who was nominated to the d.c. circuit and close to someone we know the president knows, jim clyburn. so we turn to somebody who has an actual vote on this, the senator from hawaii who serves on the judiciary committee be maya is back with us. we understand the process and obviously respect you will go through it, you will vet whoever is chosen but i am curious if you can tell us anything about either individuals on this list or anyone else you have your eye on as the white house decides and vets who to pick? >> first of all, i would like to join basically i think our country in thanking justice breyer for his decades of service on behalf of the people of our country and the kind of judicial temperament that he brought and how he approached the decision making. and clearly, ari, based on -- what you just said the segment just before, we have a number of very highly qualified black women and i very much support president biden's decision to put a black woman on the court, high time, about time. >> maya, i want to ask you about the qualifications because it's so easy for people to immediately start looking at things in certain categories, and it is true there is this historic pledge on the table. but as someone who both understands the way categories have been systemically abused in america, your work attests to, maya, and also transcending certain things, let's be clear, judges and people with a lot of government experience have tended historically to be sometimes less progressive jurists than people who come out of advocacy, the classic example being thurgood marshall. i'm curious if you see any differences here we should keep an eye on? >> yes, and thank you for that question, ari. i think it's critically important to note, first of all, every single one of these attorneys that we are seeing on this list are highly qualified, not just qualified but highly qualified. and remember that donald trump throughout the process that had the american bar association qualify people he appointed, that was something we always had as a neutral, nonpartisan way of assuring everyone brought before the committee has been vetted by the profession to say this person is qualified. what is so important to note here, one thing we should not hear in this process is for any one of these candidates who has not sat on the bench yet, that somehow means they're unqualified. frankly, even if we look at all of the chief justices that have served on the supreme court, out of 17, the last 17, 9 of them never served on the bench and they've all been white men. so i think the point here is to make sure there is no double standards, that we're looking at qualification that does not require service on a bench somewhere in the country, and recognize that, frankly, even the other eight, very few of them had even very much experience on the bench. the question is, how well do you understand the law? how much can you do something that even justice sandra day o'connor, a reagan appointee noted, which is the importance of bringing your experience of the world to the bench and it's one of the reasons why it's high time and past time as the senator said for a black woman. we need that experience on the bench. >> when it comes to the senate, here's what president biden just said about what he's dealt with in the senate, senator. take a listen. >> i did not anticipate that there would be such a stalwart effort to make sure that the most important thing was that president biden didn't get anything done. >> and yet here we are. i'm curious, senator, what you see in the confirmation clash ahead. >> what i'm looking for is a justice who can be fair and impartial and who does not have an ideological ax to grind, which is what we saw as far as i'm concerned in president trump's nominees, including two to the supreme court. so, yes, i'm expecting a fight, but there you have it, and i'm looking forward to someone who's going to be not only highly qualified as all of the people you already talked about are but who really bring to the judiciary the kind of diversity that i like, someone who will consider the impact, the effect of whatever decision making is on people in our country so they are not making decisions just based on -- which i would like them to base it on law, which would be nice, unprecedented and not eagerly trying to get rid of a decades of precedent to protect a woman's right to choose, for example, and voting rights, et cetera. but i would like a justice who also would take into consideration the real-life impact of the decisions he or she will be making. >> yeah, and that sounds like a good north star. i want to thank you on what is obviously a busy time in the senate judiciary committee, senator hirono and maya. we have our shortest break now, 60 seconds. when we come back, i will show you exactly what justice breyer told me over the years about these conversation fights about the law and, yes, about 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you now the substance and what it shows about the future and the decision facing president biden as well as where the high court heads. let me start with where we're going. the supreme court's shift to the right is actually evident when you go across breyer's career because in '94, he was widely considered a moderate pick at the time, acceptable to conservative republicans. keep that in mind because in the days ahead as we talk about replacing him, you might hear people on the right saying that breyer's too liberal or they don't want someone as, quote, liberal as him. but facts do matter. it was a long-serving utah republican and judiciary chairman, senator hatch, who personally recommended breyer to president clinton as the kind of leftist-centered jurist that hatch could back. it was also a shift republicans wanted because if you're wondering, why were they brainstorming people for clinton that might work, well, they were actually coming off the confirmation of an even more liberal judge who had just successfully made it onto the court, ruth bader ginsburg. >> breyer came close to being selected last year and even came to washington for an interview. but aides said he didn't click with the president, who turned and said to ruth bader ginsburg. one big advantage for breyer, he's very well liked in the senate. >> that proved to be true, he was well liked and respected. i walked through some of numbers over the years when the very partisan senate still was not so partisan they couldn't put forward qualified nominees under the court. he was confirmed 87-9. then senator biden was in charge of those hearings. >> today the senate judiciary committee welcomes judge stephen breyer, the president's nominee to be associate justice of the supreme court of the united states. in each of the confirmation hearings that i've had the privilege to chair, i've tried to look at the broader issues at stake when we confirm a nominee to the court. to consider the values by which our nation defines and redefines itself over time and the means by which government can best express and defend those values. so we welcome you here today, judge, not merely to measure your competence to sit on the court, but to engage us in a discussion of those important matters. >> you know, you put the politics aside, history is pretty interesting. you look at those two individuals, their impact on so many things in america and here they are at purposes again, this time breyer giving a heads up, apparently, to the world so that president biden might pick his replacement. now all of this, as mentioned, has gotten hotter and hotter as the washington politics have changed. when i did get to talk to justice breyer as a reporter, i asked him about how you deal with those politically pointed questions from senators in the confirmation process. >> the senators are going to reflect what you want so you better stop it and the way you stop it is when you disagree to somebody, you talk to them about it. you talk to them about it. you try to convince them. you participate. you vote. and you do it yourself. >> an almost old-fashioned idea how to deal with senators, that was in one of the interviews i mentioned, breyer talking about the question. he would ultimately find himself ruling on some of the most important and pressing controversies in america. it was breyer who wrote the majority ruling upholding obamacare, which was challenged several times. this was a series of rulings that continued to reinforce obama's signature health care law. >> today's decision was a victory for people all over this country whose lives will be more secure because of this law and the supreme court's decision to uphold it. >> when you talk about that decision to uphold it and what's changing on the court, on the substance, that's part of what the court will lose with breyer retiring and the question is, who will replace him and would they have similar views about federal power in health care as we go through this pandemic? breyer was also on the losing side of certain issues, as a left of center minority. there was a 2004 ruling on partisan gerrymandering, something so many people talked about, rachel on our air for years, how this undermines democracy. the court did not want to get super involved and breyer disagreed saying democracy was at stake and clearly political gerrymandering can fail to advance any plausible democratic objective and threaten serious democratic harm. like ginsburg and scalia on other issues, that is how he would advocate writing not only for the day but who history to perhaps turn that dissent into majority. now breyer was the majority on other voting cases. he wrote a closely divided opinion on the winning side, 5-4, stopping alabama from what would basically dilute the lawful power of black voters in the state. now going back to the interview we did just about two years ago, i asked him something that i actually wonder about as someone who studied the law and reports on the law, which is how do you do these rulings where politics is the whole story and you know it's going to benefit a political side no matter what you do, how do you stay above that political fray ruling in these kinds of cases? >> we stay out of politics, and really sometimes it's very hard to just stay out. but the more the political fray is hot and tense and so forth, the more it's -- we stay out of it. and, of course, we have to stay out of it because the decisions we're making are decisions for 330 million americans. >> fact checked true. the justices are some of the least scrutinized and least covered members of the federal government. we don't even get cameras in their courtrooms, even though that's how a lot of people learn about what's happening in the world, or videos you take in the courtroom and put on the internet, either way that's not even allowed. it's not just p 330 million americans governing things like health care, it's also life and deng. we are a country, rare among difficultized democracies, that still executes our own citizens. the death penalty as i reported repeatedly on this program has proven to be bias against poor people and black and brown people. i can tell you justice breyer was someone who clearly cared about that, and he was losing these cases, meaning he was writing in the minority in those dissents about exactly what's wrong, he said, with the american death penalty. in 2015 he wrote it likely constitutes a legally prohibited cruel and unusual punishment. this was a jurist, whatever else you thought of him, cared deeply about that obligation. all of those appeals that go up to the supreme court where people would say, not only was this case wrong or a miscarriage of justice or someone might be innocent, but someone might be innocent and about to be executed in our name by our government. now, when you get back to where we're headed, of course, like any reporter, nothing special about this question, you got to ask the justice, especially as they get on in years about their thoughts on potential successors. this was an area where he clearly demured. >> that is a political process insofar as nominating and confirming the judge's concern. so asking about that process is like asking me for the recipe for chicken a la king from the point of view of the chicken. >> now, just like for a tv host, it's a lower bar for humor from supreme court justices, that's his von mott, he sees himself like the chicken. don't ask me about the chicken in the recipe, go talk to the chef. that's where we are, these are people, these nine justices who wield such huge powers and the question is, any time you have one of these vacancies, who should have that lifetime appointment? remember, nobody else has a lifetime appointment in the other branches, congress, senate, president of course. who should get the lifetime power, and what do we want to do on that process? we think about what breyer did and where we're 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pregnancy. some of the most common side effects include injection site reactions, fever, and tiredness. if you switch to cabenuva, attend all treatment appointments. with once-a-month cabenuva, i'm good to go. ask your doctor about once-monthly cabenuva. the democratic supreme court appointee justice stephen breyer announcing potentially his retirement, that's the report we have, or he will ultimately or soon. we turn to two experts, is linda greenhouse covering the supreme court for years fore"the new york times" and writing other pieces as well and jeff blatter in is a former student of justice breyer himself. he went on to succeed him as counsel on the senate judiciary committee. in fact, i think we have you at justice breyer's swearing-in ceremony. we should mention he's now assistant attorney general from colorado. nice picture. welcome back, both of you. >> thanks, ari, nice to be with you. good to see you. >> there you go. nice to have everybody together. linda, i start with you as someone who follows the court, i have been reading you basically my whole adult life and you know these issues inside and out. let's start with your thoughts on justice breyer's contributions and anything about the way forward. >> yes, so i called justice breyer sort of the last enlightened man in an unenlightened age, and by that i meant someone who really believes in the power of facts, expertise. in his prejudicial life, he was a administrator of law and facts really matter. he finds himself on a court where facts seem to matter less and less. so he did write a number of important opinions, but his voice, as i respond to it, has really been in dissent. and i think he looking ahead realized that's the way it was going to be. powerful and comes across to some people as a little cool and sophisticated and aloof but there's a real passion he's brought to the court. you mentioned the death penalty cases, and that's certainly true. but on other things too, on equal protection, definitely, and he's written important -- he's an important voice as the court has moved ever so slightly and now kind of reached a climax to his right. >> jeff, what can you tell us about him and his work? >> i think justice breyer, as linda was suggesting, is literally a throwback to an era where institutions worked. he came up at harvard at a time that the faculty, almost exclusively white males, believed in the law as an institution. his work in the senate, for senator kennedy, who really was his sponsor to the supreme court, taught him how congress can work when it did work. it was a time when you agreed when you could and fought only when you had to. he would meet with his counterpart on senator thurmond's staff every week and figure out where they could get common ground. so as a jurist, he brought that background to the court that was a pragmatic sense, how do we make the law work as an institution so that democracy works for the people? the wisconsin case you cited is an example of that. >> jeff, how do you -- go ahead, linda. >> i was going to say, when he was chief judge of the first circuit for federal appeals court in boston, there were almost never any dissents from that are the could. he was always able to, along with cooperative colleagues, of course, bring that court together and i think it came as quite a shock to him that that's not how the supreme court in these times works. not that i think he really ever stopped trying until these very last cases, the vaccine case earlier this month, i think just drove him around the bend. i think he could not believe what the court was doing in that case. >> let's dig into that, linda. that goes to what i will ask jeff so i will go to you and then jeff, how did he -- reminding viewers, enlightened man as you put it and i certainly had less exposure than you did but as a reporter i felt he was thoughtful and respectful of everything. how did he deal in your view, linda, on jurists who came on and were, evidence wise, more nakedly political at times or what i will call late-stage scalia, where stuff that wasn't in the record and wasn't totally true was just sprinkled around, which cuts against everything you're taught about court rules? linda first. >> i think he tried as the clip you had earlier suggested, tried to work with everybody, really believed in the power of persuasion, the power pa of logic. just give me the facts, give me the law and i will show you how it adds up. when that didn't work, when there was an increasing gap between where the law should have been leading the court and where the court ended up, i'm share that was an occasion of extreme frustration, and i think the vaccine case really exemplified it. he just radiated such anger from the bench, unusually from him, from the bench during the argument in that case when the lawyer challenging the employer vaccine rule didn't seem willing to take account of the statistics justice breyer was offering, the number of new cases of omicron covid a day, are you telling us there's nothing that can be done about it? i felt it was kind of a turning point actually the way he behaved on the bench in that argument. >> so interesting getting that view from you. jeff, i'm just going to tell you, i've got 40 seconds for you. >> as linda was suggesting, justice breyer was not a notorious rbg. he was not a sexy justice. he only of late has gotten so frustrated -- it's really a measure of how far the country has come and how much the institutions of government, not just the supreme court but the senate itself, have changed. and one can only hope that instead of being viewed as a throwback, perhaps in the future he will be viewed as a model to get us back to a time when institutions work again for the country. >> a fitting thought here as part of our special coverage. i want to thank jeff and linda. we will go to break and when we come back, we have the development in the gaetz case. stay with us. tz case. tz case. 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"the reidout" with joy reid is next. hi, joy. >> very interesting career, and the death penalty thing is something i care about, too, so thank you for highlighting it tonight. >> thank you, joy. >> cheers. have a great evening. on "the reidout," it's very powerful for joe biden to make our institution a little bit more about america. the question is what kind of america we want to be, by not a threatened democracy but by appointed membe