he was governor so maybe that's just par for the course. but then when ronald reagan ran for president in 1980, that record came back around and bit him a little bit. all through the d 1960s and '70 believe it or not the republican party platform o nationally had explicitly and enthusiastically supported the equalex rights amendment, theti era, the constitutional amendment that would guarantee equal legal rights for all citizens regardless of sex. the equal rights amendment had kicking around for decades by that point, actually by generations by that point and the republican partyge national had said for years that its platform that it was explicitly in favor of it. until ronald reagan as the presidential nominee in 1980. reagan was right wing. and he was a culture war kind of conservative. and sticking it to the feminists was exactly the kind of thing that he built his campaign around so inth 1980 the republin party dropped its decades long supportpe for the e.r.a. which bothered some women in the republican party. and also reagan has this terrible record on women's issues and hiring women and appointing women from the time that heme was governor of california. so some republican women who were elected officials, and members of congress, long time party activists, women who power in thes, republican party, they were notin happy about ronald reagan as the nominee. they were disgruntled with their party's choice ind 1980. by the time the 1980 presidential election rolled around, the reagan campaign had a clear lead. they were pretty sure their candidate was going to beat jimmy carter and win the presidency in november. but they did have this persistent worry about reagan's support among women and for good reason. he didsu have a problem in his record when it came to women. and a lot of women were mad about the e.r.a. thing which was a big changeab and a dramatic o at that time and only highlighted the other things that were wrong in reagan's record on that subject. and in fact, his polling consistently showed that reagan was polling way better with men than he was with women, his support among women was actually quite soft given how well he was doing overall. and that was all apparently worrying enough to the ronald reagan campaign in 19880 that in october of that year, es less than a month before the election, ronald reagan called a press conference, and called this rabbit out of the hat. >> ronald reagan today promised to appoint a women to the supreme court if elected press. reagan said he mate the promise to set the record straight on his attitude to equal opportunities forhi women. more with chris wallace. with his own polls continuing to show he runs better among men than women, reagan took a dramatic step to reach out to female support. >> i'm announcing one of the first supreme court vacancies in my administration will be qualified by the most qualified woman i can possibly find, one who meets the high standards i would demand for all court appointments. it's a time for a women to sit among our highest jurists. >> reagan acknowledged that his opposition to the equal rights amendment hurt him with some women. the supreme court announcement was a bold step for a campaign often criticized for sitting on the lead but reagan aides worry as election need, democrats will come home to vote for mr. carter and they hope that there is new reason to vote for reagan. chris wallace, idaho fall, idaho. >> less than a month before the election against jimmy carter pledged that if he were elected he would appoint a woman to the supreme court. when the conservative media and republicans today have been pounding their chest and screaming about how wrong, just how wrong it is that joe biden made a pledge during his campaign that if he werema elecd we put an african american woman oned the supreme court, the conservative media figures who are making a big deal out of that and republican elected officials who are making a big deal of that, they ought to be asked if they were that mad about ronald reagan making that same kind of promise in 1980. i got it tell you, this is not an on cure thing people forgot, when reagan made that promise ahead of therg 1980 election, i didn't come from nowhere. it was big news. nbc had reported during the republican national convention earlier that year that reagan was already floating the idea to republican women to try to appease them, because they were so mad about his dismal record when it came to women and women'swh rights, it was very clear that he wasan doing this r political reasons, to try to win back women's votes. the record is clear. >> most of the day, reagan was in his suite on the 69th floor of theis headquarters hotel. every once in a while, one television camera without sound and some still photographers werean allowed in to take pictures. no questions allowed. he met with 13 of his economic advisers, for what was described as a routine briefing. >> reagan met with long time congressional supporters, talked about the vice presidency, no pictures were allowed. >> when the camera was there when he met with republican women leaders, some of these women hadwo been furious over t refusal over the platform commit the equal rights amendment. after a short smiling meeting, they said reagan had suggested that a s woman might be just rit for a supreme court appointment and that he had shown sensitivity to their problems. >> iit believe that the governo and his statement on equal rights can send a positive message. >> that was months before he ultimately made that public promise. rage-floated this idea and they let cameras see him floating this idea to female republican leaders. maybe i'll promise to put a woman on the supreme court. would that work? rnc in 1980, e summer of 1980. then in october of that year, a month before the election, worried about his polling with women voters, he made it official, the public pledge that he would choose a women supreme court just fis if elected. there had never been one before. and he did become president and he nominated the first female justice, sandra day owe conner. >> in the last election, candidate joe biden made a pledge of his own. just as an african american had not been, a black woman supreme court justice. joe biden promised in the campaign he would make that happen. and upon the retirement of long time justice stephen briar, that is operative. the white house is reminded of it today and president biden plans to stick to that pledge and conservatives are going crazy saying this is absolutely no precedent and an outrageous thing that joe biden promised to, do like ronald reagan did not exist. ronald who? and joe biden has made this pledge during the campaign and he will live by and shape history from here on out in the next few days and months until we get the new nominee on the court, when joe biden made this pledge which we are now going to live by, it was a really consequential thing when he did it, it had a huge political impact when he did, it and it was also no sure thing that he was going to do it. at least by one account. his most influential staff members on the campaign told him asme late as the day as he made the pledge that he shouldn't do it. this is from a book about the biden campaign by reporters jonathan allen and amie parents, "lucky" how joe biden barely won the presidency. jim clyburn had heard enough, or really not enough. the house democratic whip pushed himself out of his seat at the charleston's center con hert hall. and he dashedch for the exit wi the urgency that a friend recognized as a 79-year-old reason to find a rest room, he needed to find joe biden and fast before the end of a commercial break before the end ofe the presidential debate. february 25th, four days before the south carolina primary and biden was blowing it again. almost an hour and 45 minutes had passed inal the debate alrey and biden hadn't mentioned the one promise jim clyburn said would nail down black votes in south carolina throughout the rest ofso the primary and in th generalre election. clyburn wasan shocked but not stunned. he made a bee line for the backstage area. pete buttigieg approached to greet the most powerful democrat in south carolina politics. clyburn brushed mayor pete assign and his eyes darted around and foundgn biden and he together out of earshot of the other candidates and there wasn't much time until bid-to be back on stage, you've had a couple of opportunities to mention naming a black woman to the suprememe court. clyburn lectured his friend of nearly half acl century like a schoolteacher scolding a child. i'm telling you, don't leave the stage without making it known. and biden had seemed to get it night before, when clyburn talked to him at a congressional black caucus reception aboard the uss yorktown. biden was desperateth to get clyburn's endorsement. very few endorsements carry weight in modern f politics. in south carolina though, awe perception that built up that clyburn's im prime tour meant everything. and and voters believed it and the media believed it and most politicalev insiders thought the waspo a part of truth to it. there was no plaque political figure in the history of the state that had more influence in south carolina or the deep south. clyburn wanted to endorseso bid. in fact, he had no intention of endorsing any other candidate. but he could also see how badly the wheels had come off biden's campaign earlier, and he was a savvy enough politician to know that there wasn't much point in endorsing someone who was going to lose. on the uss yorktown the night before the debate, clyburn and a few colleagues offered biden counsel and made what amounted to a political ask. the find a way to say that you are part of picking the first latino woman member of the united statesla supreme court, sonja sotomayor, and you're looking forward toun making the first african american woman a member of the united states supreme court. clyburn said. clyburn believed and there was good evidence to support his supreme court justice was worth a lot more to the black community than a vice president. vps come and go. clyburn thought. al gore was vice president. where is he now? but a supreme court seat, well, that's for life. the meeting on the yorktown was fresh in front of biden the next day as he prepared for that night's debate and he understand the difference between ani narr victory and a blowout. his margins with black voters. if he committed to naming a black woman to the united states supreme court, that might give him a lift. i think i should do it, he told his advisers. don't do it. simone sanders replied speaking in concert with the group if he wanted to do it at some point, he should make a carefully considered plan around announcing it and it wasn'tfu t kind of thing he should throw there on a debate stage and besides it might look like he was pandering and back pire. biden was torn. his colleagues believe the message had landed andes the next night the debate unfolded and didn't hear the words come out of biden's mouth, he o grew more and more frustrated. one opening, two, then, three, why won't he say it, clyburn askedwh himself. finally, he took matters into hisel own hands at that commercl break. backstage, biden looked his friend in the eye and nodded his assurance. clyburn returned to his seat to watch the end of the debate. and then of course, this is what happened at the end of the debate. >> we talked about the supreme court. i'm looking forward to making sure that there's a black woman onsu the supreme court to make sure we in fact get representation. not a joke. notsuac a joke. i've pushed very hard for that. >> and my other motto was, as you said, you're defined by your courage, and redeemed by your loyalty,co i'm loyal, i do what say. >> i am loyal, i do what i say. after beingat drowned out brief there by applause,r in the roo. i do what i say. >> what he said he would do is put an african american woman on supreme court es if he was elected president. four days before the south carolina primary. it was the first time he had ever made that pledge. you heard the crowd go wild. south carolina congressman jim clyburn endorsed president biden thecl next day. an b incredibly emotional, incredibly affective endorsement. it is credited to this day by many people with joe biden winning south carolina, winning super tuesday and there by winning the democratic presidency and the presidency of the united states. and clyburn told nbc today that what he n credits biden's win i south carolina to is not actually his ownso endorsement joe biden, but what he credit's win in south carolina to is that pledge, thatwi biden made, on t debatepl stage, the night befor his endorsement. that pledge clyburn pushed him backstage to make that an african american woman would finally be nominated to the nation's highest court for the first time in our country's history, if joe biden were elected president. and now here we are today. january 2022. officially waiting to hear who president biden's nominee is going topr be. knowing he will keep that pledge. and having the opportunity now to ask his former advisers from the campaign if it really went down like that. and if they really truly did tell him not to do it that night, to not take that leap, not there, not then. joining us now, i am delighted to say, is simone sanders, former chief spokesperson for vice president harris, former senior adviser of president biden's presidential campaign and has a new she at msnbc which has everybody at msnbc over the moon, ms. sanders it is such a pleasure to have you here and suchit a pleasure that you are joining us msnbc, so grateful for that. >> thank you, rachel. happy to be here. and i mean you put the t as some people would call it, right out there at the top of the show. so i love it. tacy great. >> let me ask you, if the account in that book is broadly correct, did you and other advisers to president biden think that that was not the right move, when he made that pledge at that debate, on that debate stage in south carolina? >> well, i will say a number of things in the book is not true but thatth is in fact true, the was lots of debate leading up to thatde debate in south carolinan february about what then candidate biden should do.fe there was never a question about if the commitment was real. similar to the commitment that the president, then candidate bidenth made himself about maki sure his running mate would be a woman.se that is a commitment that joe biden himself made, something he strongly about, and similarly a commitment that he madesi in february on the debat stage. the book o is also true that so folks myself included didn't want to be seen as pandering to just throw it out there, on a debate stage and for folks to say that the then candidate biden is just doing it to get vote, black voters, when many of us people who know the president very well, i count myself among those folks know where he stands on those issues. i would h like to note that joe biden, as he usually does, went out there on that debate stage in february and he went with his and his gut was right, and today, few folks, all across america, folks across america were excited. i tweeted a great day to be in america with a jurisdoctorate and i think that is true and the energy that folks are feeling on the democratic side of the aisle, i think voters and democrats and strategists will be goodmo to remember. that and if i were atst the whi house right now,be i would have asked toe get into the meeting in the optical political strategy and say how are we thinking aboutst galvanizing people around this, and keeping the energy up through the rest of thisth year and into the election. >> having so recently departed the administration, i want to ask for your candid take on how well set up they are, how preparedwe they are, how organid they are, to handle the big political lift that is a supreme court nomination. i mean there are always things that happen in supreme court nominations that are a surprise, they are always difficult, even whenth you think you've got the votes inwh advance. it's a big political undertaking. it is a huge responsibility to the country and to history. do you feel like they are strung out from a difficult first year? do you feel like they have got this?do do you feel like this is a well-organized t part of the wa the white house works? >> i think this particular piece is a well-organized part of the way this particular white house works. the president iswa a former chairperson of the senate judiciary committee. he has presided over a number of confirmation battles when it comes to supreme court justices. the vice president, a former memberce of the senate judiciar committee has been ame member o the committee questioning potential supreme court nominees under thepo trump administratio. andun then there are, it has be reported out there and i will tell you it is absolutely true, that the judge's piece and the judicial piece is something that then campaign was extremely focusedth on. in fact if joe biden were to win theoe nomination, what would be the plan for judges? much was made on msnbc throughout the daymu today, talking about the fact that the obama administration left a lot of judges on the table and the trump administration confirmed a lot of t judges to very importa seats at the federal level. well, the biden administration has done a very good job frankly, it's just the facts, confirming judging with diverse folks who were not just prosecutors, but public defenders, people who had civil rights backgrounds, so this particular white house is set up well for the battle and i think anybody objectively looking at it would say the same. and i am. >> it's invaluable to have that perspective from you, because you've seen it up close but i think objective, also objectively observable from the outside in terms of how they handle nomination, absolutely true. former chief spokesperson for vice president harris, senior the presidential campaign, i will just say, it was an electric moment at msnbc when we learned that you were coming on board, i'm so looking forward to your new show, so looking forward to see everything you're going to do with us. thanks for joining us in general. thankso for being here tonight >> thank you, rachel. the pressure is on. i'm going to go and practice with the teleprompter tomorrow. i want to make you proud. >> i'm here, a phone call away. i will be right there to help if i can. all right. today of course it was nbc's inestimable pete williams that justiceti breyer was retiring. i was glued to my seat when he broke the news on the air at nbc and thenbr i cheated on my msnb family because i immediately wanted to jump over to npr to seer what nina totenberg's reporting would be on the announcement knowing her experience as a supreme court reporter and with her deep connections to so manyt of the justices and those around them on the court she would have detailhe and insight that nobod else had as to where this decision came from and what it will mean for the court. and indeed, all day long, her reporting for np reflex has been priceless. just a piece of it today. quote, if heie hadn't been a justice, hollywood might have made him up. deeplyma intellectual, fluent i not just law but also philosophy, art and culture. he's also absent minded. geeky. self deprecatingly funny. physically fit. but so preoccupied that he three timesed suffered serious injuri whenti knocked from his bicycle. in f 1993, mr. breyer was a finalist to fill a supreme court vacancy and about to come to washington with then-president bill litten and knocked off his bike by a car. and with punctured lungs and the interview did not go particularly well. clinton chose ruth bader ginsburg instead. but a year latercl when a secon vasionbu sy occurred upon the retirement of justice harry blackmun, it was breyer who got the nod. in many respects his monuments were not so much the decisions that he authored as the decisions that he influenced behind the scene, the justice pushedne and prodded his fellow justice for consensus on everything from obama care to affirmative action in higher education. t joining us now is nina totenberg, legal affairs correspondent for npr and national treasure, it is great to have you with us tonight. thanks for making time. >> it's lovely to be here, rachel, after a long day for those of us who cover the court. i did want to say one thing about ronald reagan and joe biden. these are two men who have some things in common. they don't generally make promises that they don't believe in. and reagan actually believed in the idea of appointing a woman to the court. and just before he made the promise, a bunch of his young age tried to talk to him out of it and you should name scalia or somebody like that, and not use your first and, you know, you don't know if youyo have any mo nominations, to choose this woman that we don't know that much about. and he said, i like her, either she's a westerner, i like her ethics, i likes the way she is and i'm going to name her. i made a pledge and i'm going to live by it. >> in terms of this decision today, for president biden, as you can tell from the start of the show, there is so much emphasis and there always is,ern who the president will pick for what will soon be the open seat, but i wondered if you could talk a little bit about how the court will change with the loss of justice breyer. i thought your reporting today in fpr about his prag -- npr about his prag tism and behind the scenes effects on ruling, on fellow justice, that seems like that is something thatll is prey hard to shop for in another nominee because you don't know how these justices will work together and it seems like a quality. >> it is a very rare quality. but it is his really strong belief that the trust that the american people have in the supreme court is based on some idea of consensus. and not having radical changes suddenly that make it look like it's just a political decision dressed up in a black robe. and i think last year, he had a good term. heha managed to get some of tha consensus about some things. thisen year, it's something els. and you literally could see him holding his head in his hands like this during oral arguments. the supreme court is going very dramatically to the right. potentially overturning roe v. wade. and now possibly heading in the direction of overruling the idea that colleges and universities to use race as a factor, one of the many factors, in college admissions, you can see it in the desire to move very quickly in the notion, and i think he's 83 years old. he has a lot of experience, and i think we ultimately look to that, and i think he said at the moment, i can only do this for so much longer, the democrats could lose control of the senate in the next election and if that were to happen, mitch mcconnell might hold t up the next openin for three years. so i better do it now. >> often supreme court, not always, but often retirements, departures from the courts are announced at the end of the court'sno term typically in jun. justice breyer did a political favor to the white house by announcing that he would retire in june but making the announcement now so they could start to work on his successor. i wonder if that means that the white house was sort of right in terms of how they tried to temper so many calls from the leftte and from commentators an gadflies and progressive groups trying tove push the justice to retire thinking that my harden his resolve to stay. i wonder what your view is of the decision on the typing and the sort of courtesy to the white house, the political courtesy of giving them a few months more than they might have otherwise had. >> well, i think ron klain, the white house chief of staff, justice byron white's retirement letter, and he followed him with him, at the time of the clinton white house,hi he called him ov and he said, here, i want you to take this to the president, and i think that was in february, because i think i had the misfortune to be away. and it's a thing that justices have done, not always, but in the last 20 years or so, sometimes, not always, but when they make this decision, when they actually have made a decision, w and they're not on e fence, justice kennedy i think was very on the fence in 2018 until he finally pulled the trigger on it. but i think the justice breyer finally having made up his mind and iad expected if he would do this, we do it in january or february, or the latest early march. and give the white house time to vet the candidates, get the candidate confirmed, understanding that thereca aren thatun many rules left, if any, that republicans can use to block the democratic nomination right now. as long as kamala harris is the vice president and can break a tie,rr i think the democrats cod stick together barring some unforeseen revelations that would make it more difficult. in which case they pick someone else. >> nina, thank you so much for your time tonight. i'm going to insist any time there's supreme court news this big, that you keep that garden background, just so we can see -- >> i don't know how to get rid of it. it's perfect. >> it will be our visual cue to the world that something big has happened. >> rachel, it's so cold, and truth telling that i am, i'm a technical idiot. so i don't know how to get rid of it. >> well, you can't. you're not>> allowed. >> perfect. bye. >> much more ahead tonight. stay with us. allowed >> perfect bye. >> much more ahead tonight stay with us thinkorswim® by td ameritrade is more than a trading platform. it's an entire trading experience. with innovation that lets you customize interfaces, charts and orders to your style of trading. personalized education to expand your perspective. and a dedicated trade desk of expert-level support. that will push you to be even better. and just might change how you trade—forever. because once you experience thinkorswim® by td ameritrade ♪♪♪ there's no going back. february 2016, february 13th, when news broke that supreme court justice antonin scalia had died. that same day senate republican leader mitch mcconnell said he would not allow a vote on scalia's successor because it was too close to the next election. it was nine months away. it was february and the election was in november. and even a controversial one, it didn't matter that plenty of supreme court justices throughout our nation's history had been confirmed in election years. senator mcconnell says he wasn't going to allow president obama's nominee to not only fill that supreme court seat, he wouldn't even allow hearings for an obama nominee for that court seat, they were going to hold the seat open for more than a year and pretend that president obama hadn't even made the nomination. in so doing republicans were able to throw their proverbial jackets and purses over that scort seat long enough to save it for a republican president to nominate neil gorsuch. for years later, four years later in 2020, another supreme court justice tragically passed away, this time ruth bader ginsburg, her death came during an election year, but this time the election wasn't nine months away, it was literally 45 days away. and senator mitch mcconnell decided yes, all that stuff i said about not confirming a justice in an election year, you can forget all that, and he then proceeded to rush through the confirmation of justice amy coney barrett at record speed, it took 27 days from tip to tail. and that of course is a glaring example of senator mcconnell's hypocrisy and duplicity, i'm sorry to have to say it that way but it is a president and democrats said today upon the announced retirement of justice breyer they want to confirm his replacement just as quickly as amy coney barrett was confirmed in 2020. meaning they think the whole thing can be done in a month. democrats control the senate by the thinnest of margins. but to the extent that senator mitch mcconnell and the republicans have control over anything related to this confirmation, i think that we should reamly expect based on the recent history that we could expect anything from them, anything that they can control, they will control to try to put a spinner in the works here. also, i mean there isn't any room for, wiggle room, room for error or unforeseen circumstances a 50-50 split between democrats and republicans in the senate right now and as far as i know there hasn't been nominated a supreme court justice with a 50-50 senate, what dirty tricks are they on the alert for. joining us a member of the senate judiciary committee senator amy klobuchar. thanks for joining us tonight. >> it has been a great show. and wonderful to be on and watch simone and nina, i don't have the cool background of nina but i'm ready with the questions. >> i'm committed to this idea that we need to have a national bat signal, nina totenberg put up her garden backdrop, something pick has happened but i am also practically aware that she doesn't know how to take it awaiver, so i'm worried -- aware, so i'm worried she doesn't know how to take it down. >> let's get to the matter at hand. >> let's talk about how this process is going to go. we know how these things go by the book but we know how perverted the process has been in recent years by the stuff that mitch mcconnell has been willing to do, both with open seats and to fill seats. are you worried about there being shenanigans or dirty tricks that you haven't previously had to deal with in terms of filling this? >> we're used to it. they throw everything at these nominees and we must be ready to defend them and make the case for them because they themselves can't go on tv, i remember playing this role when ex lena kagan was nominated, sonja sotomayor and getting the true facts out there about the true record and their story. what what we have here is a very different situation. it is a 50-50 senate. dig durbin controls the dafl. and i will say under his leadership and senator schumer's leadership on the floor as has been noted we have confirmed more judges last year than any president has put forth since ronald reagan since you started your show that way, so we have a lot of experience getting this done, we have a white house that has vetted a number of nominees well aware that this could be coming down the pike, with so much respect for justice breyer and his incredible record and they knew there was a chance he could step down and we feel we are in as good of a situation as we can, so after the nomination is made, you look at the number, sotomayor with 66 day, kagan, 87 day, gorsuch was 65 days. kavanaugh was 88 day, and of course barrett you noted 27 days, but who is counting. i think everyone will be. so i think a lot of this is we will meet with the nominee. they try to meet with everyone on the committee as well as other senators. and we have a judicial questionnaire that some of them filled out in the last few years so that's helpful. that is a head start. and then as senator durbin schedules the hearing, it is usually as you know, a day of openings and senator, the opening statement of the nominee, and then a day or two days of questions and then usually a panel of experts at the end. because we're 50-50, you don't have that immediate vote out of committee unless we do pick up a republican vote and republicans have in the last few decades voted for nominees from democratic presidents. and so we call that. if that happens, we get out. if it doesn't, if it's split, then we will have, to view something called rule 14 which will allow senator durbin to give senator schumer basically, and it goes to the floor for a vote. but when you're 50-50, it makes for more shenanigans. >> senator, in terms of the timing from the white house, how important is it, the timing in terms of when you first get the name of the nominee? obviously the process has to take as long as the process is going to take once it's formally before the judiciary committee and then the senate but how quickly should the white house act here? >> they will want to interview people, even though they know this might be coming, i would assume that president biden with his vast experience, former chair of the judiciary committee, knows the importance of talking to the nominees. so i assume he will get it down to a few people, and then give us a name, but of course, the sooner, the better and i think that was what was so good about the timing of justice briar's announcement. he know's what's going on. he knows this isn't an easy situation. . anyone who watches c-span realizes that. and so not waiting until the very end or the beginning of the term makes this a lot more doable. >> senator amy klobuchar, member of the senate judiciary committee, rules master of the senate which is also very handy on nights like this, senator, great to have you here, thank you. >> all right. thank you. much more ahead here tonight. stay with us. you. >> all right thank you. much more ahead here tonight. stay with us a little bit of breaking news for you on this story that we've been covering this evening, the retirement of supreme court justice stephen breyer, the official schedule for tomorrow has already gone out tonight and it's interesting, the president's official schedule as distributed by the white house does not include this, but the chief white house correspondent for nbc news peter alexander has just reported, has just confirmed that even though it's not on the schedule president biden and justice stephen breyer are zoo to appear tomorrow together -- are due to appear tomorrow together at the white house, this will be presumably the formal announcement of justice breyer's retirement. again breyer and the president appearing together, not just meeting together, but doing some sort of event, the two of them at the white house tomorrow, we just learned that from nbc news. joining us now is our friend dalia, senior editor and legal correspondent, her article about stephen breyer's retirement is titled "the deep irony of stephen breyer's bare-knuckled exit from the supreme court," i think about stephen breyer in a lot of different ways, i never ever think about his knuckles bare or otherwise. it's great to see you. thanks for being here. >> it's good to be here on a day rachel when everybody is a little giddy, it is so rare i feel from the roses to the chug , chuckling, it's nice to have good news. >> it is history. and i get this from the news part of it, we're about to get a supreme court nominee, if you're lucky, that happens one year in your career when you have the honor and responsibility of getting to cover the news, it is always a huge deal whether you love the nominee or you don't, but this is a big deal, this is varsity level news. and it's thrilling. and also, i have to say, it's a pleasure to be able to cover this knowing that stephen breyer, justice breyer has chosen to leave on his own terms. we're not covering him because he passed away or not covering because he was forced out with some difficult circumstances, it does seem like he left on his own terms. >> he did. i will say, i'm a little sad for him, rachel, and i know we've talked about it a bunch, you know, and i sat on even on this show, there's no point in asking justice breyer if judges are partisan and political because it's like asking the easter bunny if there is such a thing as the easter bunny, he believes so deeply in this notion that the justices are not partisan, that the court is something bigger, something better than that, and you know, in a weird way, there's a quality that is so aspirational and ellegeic at the same time, and i guess that is my white knuckle reference in my piece, but in a weird weird way, because he's pulling the rip cord, this is early, this is a very political move, to give the biden white house an ability to fill his seat before any shenanigans as you and senator klobuchar talked about could happen, this signaling almost feels like he is giving up on that aspiration that he has pushed on the face of relentless pressure, just admit it, justice breyer, it is just a game of politics, you're a football, step down, and he, the harder he was pushed on that, the more he dug in. so there is a part of me that feels as though the ideas he stood for, nina talked about this so eloquently, about bipartisanship, about cooperating about not glomming on to the credit, letting someone else look good, getting results, these deep friendships he had with justice scalia, with justice o'connor, if feels like that all detonated around him and so he's standing there with this wah-wah, it's really not partisan at the same time he is making a really partisan retirement move. >> those values that you just talked about, do you think that the justice in retiring and his meeting at the white house tomorrow with president biden that he'll try to shape the choice of his successor towards somebody with those same values? >> i don't think he would say anything of the sort. i would think he would think it is unseemly. and he often would talk about, he doesn't have any opinions on judicial nominations, i think he would describe it as asking a chicken for its recipe for chicken a la king which don't even, i don't know what it means, but i think he didn't think it was appropriate to talk deeply about those kinds of political things. but at the same time, i do think he really, really values the idea that the person who follows him will look at the court in this kind of mystical auricular way. eve if that is a disappearing value. >> dahlia lithwick, thanks for joining us tonight. >> 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clinical trials for the pfizer omicron vaccine. well, now today, moderna has just announced its own clinical trial of its own new vaccine that does the same thing, reformulated specifically to target the omicron variant. moderna says the first participant in their clinical trial has had a dose of the omicron-specific booster shot that they are testing. the company has not said when it expects to have results, let alone doses on shelves. but these reformulations end up being testable, ready, at testable forms of readiness already, it is good news. and in this pandemic, for everything else that's wrong, the speed of science does continue to amaze. watch this space. science does continue to amaze. watch this space that is going to do it for us tonight. we'll see you again tomorrow. "way too early" with jonathan le mire is up next. i've committed that if i'm elected president to have an opportunity to appoint someone to the courts, it will be, i will appoint the first black woman to the courts. it's required that they have representation now, it's long overdue. >> that was president biden's pledge during the 2020 presidential campaign. now that supreme court justice stephen breyer is expected to announce his retirement, the question is, who is on the short list to replace him? >> plus, new developments in the effort to de-escalate tensions in eastern europe. as the u.s. rejects russia's demand to ban ukraine from joining nato. the state department says m