good morning. 10:00 a.m. eastern, 7:00 a.m. pacific. i'm jose diaz-balart. a very busy morning. supreme court justice stephen breyer expected to announce his retirement today paving the way for president biden to make his first supreme court nomination. we'll look at who may be on the short list to succeed him in what could be an intense political battle over the nation. the kremlin says there are few reasons for optimism after the u.s. and nato delivered written responses to russian demands to end the threat against ukraine as russia continues to build up its forces along the border. we'll go inside afghanistan for a look at the desperate and disturbing measures people are taking just to survive. meanwhile, here in the u.s., covid cases are rising in some areas and falling in many others. a new trend is emerging, people becoming infected with the virus for a second time or more. around the world ceremonies and remembrances today honoring the 6 million jews killed in the holocaust. we begin with our top story this morning, justice stephen breyer will step down from the u.s. supreme court nbc news learned yesterday. breyer is the court ears oldest justice at 83. he's set to a peer alongside president biden at the white house today to formally announce his retirement from the court which will take place at the end of the term. joining me is nbc news justice correspondent pete williams who was the first to break the news, as he always does. pete, good morning. walk us through what's next in the process and who is on the short list. >> well, the immediate next is that justice breyer will go to the white house this afternoon, we think, and formally hand the president his letter of resignation -- retirement, by the way. that's when we find out when he intends to step down, whether it's after all the decisions are handed down in late june or early july or when his successor is nominated and confirm. the white house at some point in the future will announce who the nominee will be to succeed him. our understanding is the two leading con ten jers are ketanji brown jackson, a federal appeals court judge in washington, put on the court to take the vacacy that merrick garland left when he became attorney general. she's a former clerk to justice breyer when he was on the court. the oh is leondra kruger, she, too, is a former clerk who clerked for justice john paul stephens. during the obama administration she was an appeals top lawyer and has argued a dozen cases at the supreme court. both are experienced in the law and certainly know their way around the supreme court, jose. >> pete, do we have an understanding of why breyer is announcing his retirement now? >> he hasn't said so. but what we understand from friends is he made this decision several weeks ago. last term he was urged to step down because of what happened with ruth bader ginsburg. there were many progressives who said she stayed on the court too long. her death during the trump administration gave the president a chance to appoint her successor, amy coney barrett, which gave the court a solid 6-3 conservative majority. last term people were urging breyer to step down immediately. i think that stiffened his resolve to say. he knows his way around washington, he's a former chief council of the senate judiciary committee. he's well aware this is the best chance for the president to nominate someone while the democrats still control the white house and the senate. >> pete williams, thank you so much for being with me this morning. >> you bet. now to the latest on the escalating tensions between russia and the ukraine. the kremlin says vladimir putin is reviewing written responses from the u.s. and nato to russian demands. there are few reasons for optimism this morning. this comes one day after the u.s. ambassador to russia personally delivered what secretary of state tony blinken called a serious diplomatic path forward, not revealing specific details about the u.s. response. it fell far short of addressing putin's demands that ukraine never be allowed to join nato and nato undo its post cold war expansion into europe. blinken says the ball is now in russia's court. >> we've weighed out a diplomatic path, we've lined up steep consequences should russia choose further aggression. we step forward with more support for ukraine's security and economy. we and our allies and partners are united across the board. >> as russia reviews the responses, it continues to build its forces along its border with ukraine and in belarus. a western tlens official tells nbc news russia has already deployed 120,000 troops to the region and more are on the way. even though russia keeps insisting it has no plans to invade ukraine. with me now from kyiv is nbc news foreign correspondent matt bradley. matt, western intelligence officials believe that within the next couple weeks russia could position enough troops along ukraine's borders to mount a full-scale invasion. what is ukraine doing to prepare for this? >> reporter: jose, that's one of the more mystifying aspects of this whole drama, both the ukrainians' public messaging to the ukrainian people and their military posture seem at odds with what we're hearing from the west and what we're seeing on the ground, not just in russia, but in belarus and to the south in the black sea. so this is a really difficult and kind of inscrutable position they're taking. they're very relaxed. there don't seem to be a lot of military maneuvers. that could be explained by secrecy, and also the fact that the ukrainians don't want to give what they think the russians want, which is a pretext forward. if the russians start to see that the ukrainians are maneuvering a lot, taking what the russians would handily interpret and project as a pretext for invasion, then the russians could hold that in front of the international committee and say, look, we see these ukrainian troop movements and we have to defend our national security. the entire type leading up until now, we've been hearing that the russians have been saying that the aggression is on the part of the west and on the part of the ukrainians. it's a very handy message and one they can easily exploit if they see the ukrainian military start to maneuver in a very public fashion. also the ukrainian military -- the ukrainian government simply doesn't want to make it look as though there's about to be an imminent russian invasion and that's partly for economic reasons. they don't want to destabilize their whole country and frighten a lot of people. if you walk around in the ukrainian people now, people are not at all frightened. it's actually quite remarkable. as i mentioned the other day, jose, if you can imagine a huge superior military surrounding the u.s. on all sides, it's hard to believe we wouldn't see public military maneuvers and we wouldn't see a massive panic amongst the people. that's exactly what's happening now. it's pretty hard to believe, but it's true. some western military analysts as i have spoken to have said that, yes, the ukrainians may be right when they say it doesn't look as though there's an invasion that is imminent because they don't have the military assets on the other side of the border in order to launch a full-scale attack. possibly true. but they say they're poised to do so in the next coming weeks once more forces join them from elsewhere in russia and that then they will really be able to bring a lot of forces to bear on this country. >> matt bradley in kyiv, thank you so much. with me now is richard haass president of the council on foreign relations and. also a professor of international affairs and soeft dean at the new school. richard, former u.s. ambassador to russia michael mcfaul tweeted this morning, i find it hard to believe that putin will invade ukraine. if i'm right,i think diplomacy has more time. >> actually i think it's likely. xi jinping has made the olympics an extraordinary priority to showcase what he will try to communicate as his accomplishments, china's success, quote, unquote, dealing with covid. so mr. putin is scheduled to show up there at the beginning of the olympics. so i think there's a pretty decent chance we get through february 20th, at least, without any sort of intervention. the real question is what happens next. quite honestly, jose, it's not -- the issue isn't timed for diplomacy to work because there's no mystery about what's being offered by the west. there's clear limits. the real question is what ultimately mr. putin is willing to accept. >> if he's willing to take a pause so my friend can hold his olympic games without any kind of conflict or focus being taken away from that, but it's -- it's kind of odd, right, richard, to think of a time when we're all waiting to see what putin may or may not do? >> there's certain things in history or certain long pauses in the lead-up to world war ii, indeed people talking about it being a phony war at certain points. there's one other possibility here. i can't prove it but i kind of think it, jose which is when mr. putin put these forces on the border months ago now, i actually do not think that he predicted he would face the sort of concerted u.s.-led western reaction he now faces. he may have thought he had a clear path early on. that is clearly not the case now. my own guess is he has had to recalibrate and he is now thinking what his options are both diplomatically, but also his lesser options militarily, using cyber, trying to oust the current government of created, create a puppet and he can come in and protect it, quote, unquote. i think he's already well into his plan b. >> it's interesting, richard. you talk about history. 31st of august, 1939, it seemed as though there was possibility that diplomacy could avert a german invasion of poland. even hitler himself was talking about let's buy some time. and then the 1st of september, 1939, poland was invaded. i'm not trying to equate the two, but it's just interesting how, if you look at history, it's very difficult to determine what each side is going to do. nina, a conflict between russia and ukraine would no doubt lead to the death of thousands of people on both sides. there is a russian focus on ukraine which goes back through history. how do you read this? >> well, i thought that originally when the troops started arriving to -- russian troops to the ukrainian border, i don't think there was, at least to me -- invade ukraine the way the west started talking about it. i think it was more a combination of brinksmanship, a little bit of bluster. as richard correctly said, the response was such that then it escalated very, very quickly, so russians had to prove the point that they are defending their influence in that region and that part of the world -- they repeated many times they have to increase the troops to make sure their message, that they're very serious about defending their territory is well -- now we're really facing the possibility of that potential -- which i really don't think originally was putin's idea at all. >> so what do you think is behind putin's chess moves until now, chess moves that could become some hardware invasion of a country? >> well, i still don't believe invasion is a possibility for many reasons that, of course, richard outlined. also, this is a 40 million population country. so he invades ukraine, this very big territory -- it's a big country, more compared to russia, but it's a very large country. how he's going to control that country that hates his guts. so that would be impossible political cost, impossible economic cost, impossible cost on, not only in terms of russia and ukraine but also on the global scale. so this is a tremendous gambling. putin is a gambler, a very careful one. he really doesn't bite more than he can chew. i really don't believe that in this sense he's ready to do that, but the other hybrid options that are going to be very, very -- either in the area or elsewhere. i also think the whole thing began when he met with president biden in june and they came to underzand each other, but the relationship didn't move forward, and i think that was the true buildup and bring attention to russia and putin was the result of that. >> richard, earlier this week you sent a tweet wondering why the u.s. should sent troops to fortify nato defenses. did the u.s. announcement of sending military aid to ukraine in your view make the situation worse? >> i think it's important for us to send military forces to ukraine. ukraine would be strong enough to seriously raise the cost of a russian occupation, the so-called porcupine defense. i think that makes good sense. what led in part to the end of the soviet union was afghanistan. what this is a threat to mr. putin. again, he can get into ukraine, but to raise the cost for body bags, to put it bluntly, to come back into russia, would mean he would run a tremendous military risk. i think it's very smart for us to strengthen ukraine, particularly with the kinds of weapons that, again, would increase the difficult costs of occupation. i would have in reserve the possibility of strengthening nato. that's one of the things we're doing to deter mr. putin. we're basically saying, if you go in, one of the prices you'll pay is nato closer to your borders. you don't want that, so you better think twice about going into ukraine. >> putin who is such a student and admires the soviet urine june and its history, the cost of occupation wasn't a big cost for the final analysis in 1956 for hungary or czechoslovakia. less hope he doesn't try to learn from that part of history. nina and richard, thank you so much for being with me this morning. turning to the tragedy off the coast of florida where a boat capsized with 40 migrants on board. take a look at this incredible picture. one survivor clinging to the overturned boat after more than two days at sea. in an exclusive interview with telemundo, the mother of the sole survivor says her 18-year-old daughter was also on that boat but did not survive. zblnchts zblrjts. >> the mother describing the moment that her son told her her daughter drown. the u.s. coast guard suspects this is another case of human smuggling of people desperate to flee to the united states. still ahead, more on the retirement of supreme court justice stephen breyer and a look at some of the names on the list for his replacement. plus the physical and emotional scars of a devastating humanitarian crisis in afghan where people are selling their kidneys, selling their children just to survive. you're watching jose diaz-balart reports. g jose diaz-balart reports. well, he may have friends, but he rides alone. that's jeremy, right there! we're literally riding together. he gets touchy when you talk about his lack of friends. can you help me out here? 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how soon can the senate confirm the new justice? >> reporter: the modern record is pretty recent, amy coney barrett in just 27 days. they will say they want to move as quickly as they can. once the president makes the nomination, we'll see the nominee up on the hill starting to drop by particularly focused on the judiciary committee. we'll likely get a couple of days of hearings with the nominee before they vote, then a final vote on the senate floor. all of this will be very tight in a 50/50 senate and an evenly divided judiciary committee. whether they can pick off any republican votes will be one of the big story lines we'll be following. >> tamika, talk about the significance of this moment for the country. >> well, it's important for politicians to keep their promises and especially so for president biden whose poll numbers are pretty disaltering i think we know. more important is that such an appointment would reenforce american values of equal opportunity is mandated by the civil rights laws. you mentioned my book. this appointment has been a long time coming. constance baker motley was the first black woman appointed to the federal bench. she was on the supreme court short list, but in her position, history missed its chances. i think it's just terrific that we're now at this moment once again where there are several i'm neptly qualified african american women and one who may be nominated to the supreme court. >> chuck, talk to me about the legacy of justice breyer. how will history look back at his time on the bench? >> i think favorably, jose. he had a liberal leaning, but it would be simplistic to just call him a liberal. he was practical, he was principled, he sought compromise, including his service on the supreme court, he's been an appellate judge or justice for more than four decades. so his legacy i think is a strong one. he understood that you might lose a case today, might be in the minority on a particular opinion today, but by talking to your colleagues, and most importantly by listening to them, you could be in the majority in another day or another year or even another decade. he had a long view. he thought well, he spoke clearly and he wrote beautifully. >> tomiko, how do you see his legacy? >> of course justice breyer was a professor of administrative law at harvard law school for many years. his professorial training was evident in both his personal bearing and judicial style. he's an institutionalist who is a strong believer in an apolitical court, an impassed advocate of the rule of law and a jurist who could always clearly see both sides of an issue, the merits of both sides. this was particularly evident in partial birth abortion opinion he wrote among others, where the rulings of roe versus wade and casey were vindicated. i will also say that justice breyer was a strong believer, is a strong believer in opportunity, and this was evidenced in a dis senting he wrote in a school segregation case where he insisted on the continuing relevance of brown versus board of education in our world. so i think of him as a great good man. >> chuck, his insistence on underlining the apolitical side or aspect of the supreme court, i think it's so important that that kind of be a mantra. >> i'd agree with you, jose. it wasn't that long ago where justices were confirmed overwhelmingly with bipartisan support. so whether you're talking about sandra day o'connor, ruth bader ginsburg or anthony scalia or justice kennedy, they were qualified, not because who nominated, but because they were qualified, routinely droe 96, 9, 98% votes. justice breyer had overwhelm support when he was nominated by president clinton and confirmed in 1984 i believe with 87 votes in the senate. part of the institutional legacy was bipartisan support for qualified men and women. that seems to have disappeared and i think that's a real danger to the institution and to the perception of the institution. i may disagree vehemently with someone, jose and they may nevertheless be well qualified to serve on the supreme court. i know this is unlikely to happen, but i hope we get back to that. >> garrett, we talked a little bit about this in the beginning of our conversation. it looks as though that which chuck is talking about has maybe disappeared. what do we know about the obstacles the president could face in getting a new justice confirmed whoever she or he may be? >> reporter: remember, in 2017 republicans changed the senate rules to allow for supreme court justices to be confirmed with just a bare majority. every supreme court justice since has been confirmed with just a bare majority. neil gorsuch had the most votes at 54. i doubt we see the number go that high with whomever president biden nominates now just because of the polarization of this body. the democrats that have been causing trouble for the president lately, joe manchin and kyrsten sinema have voted for every single one of 42 judicial nominees he's made up and down the federal bench thus far, i think they'll continue to support whomever the president nominates. the challenge may be maintaining their 50-seat majority. we've gone the longest the senate has ever had a 50/50 split. democrats will need every single one of those votes to get this across the finish line. >> thank you all for being with me. really appreciate it. sexual harassment is now a crime under military law. president biden signed the executive order making the change yesterday as required by the act in the 2022 national defense authorization act. army specialist guillen was killed in in 2020. back in may the military reported receiving more than 7200 sexual harassment complaints in fiscal year 2020. still ahead, what you need to know about the so-called stealth omicron variant. we'll talk to a doctor who has already identified three cases of it. first, today is international holocaust remembrance day, we're looking live at the auschwitz museum in poland which is marking 77 years since the camp's liberation. survivors are giving speeches in honor of those killed in the holocaust. new discoveries, but get there faster, with better outcomes. with app, cloud and anywhere workspace solutions, vmware helps companies navigate change-- meeting them where they are, and getting them where they want to be. faster. vmware. welcome change. it's still the eat fresh refresh™ and subway's refreshing everything like the new honey mustard rotisserie-style chicken. it's sweet, it's tangy, it's tender, it never misses. you could say it's the steph curry of footlongs. you could, but i'm not gonna. subway keeps refreshing and refreshing and re... you could, aleve-x.not gonna. it's fast, powerful long-lasting relief with a revolutionary, rollerball design. because with the right pain reliever... life opens up. aleve it... and see what's possible. living with diabetes? glucerna protein smart has your number with 30 grams of protein. scientifically designed with carbsteady to help you manage your blood sugar. and more protein to keep you moving with diabetes. glucerna live every moment 34 past the hour. as new cases of the omicron variant are declining in some parts of the country, health officials are tracking a new sub variant that appears to be spreading and spreading quickly. we're learning more about how many people are getting reinfected with covid as well. nbc news' gabe gutierrez joins us from outside mount sign any west hospital in new york. what more can you tell us about those battling reinfections and also this subvariant? >> reporter: hi there, jose. good morning. yes, we are starting to see more people reinfected with covid. here in new york state about 80% of reported reinfections have actually happened during the omicron wave. other states are seeing this as well. for example, minnesota, washington state as well, where notably about 60% of those purported reinfections were among those unvaccinated. researchers in england are also taking a look at this. just in the last several weeks, they asked about 3500 covid positive people whether they had either suspected or confirmed cases of covid beforehand. about two-thirds says they did. one man went through an incredible ordeal the first time he got covid. take a listen. >> reporter: in illinois, brian kuntz first got covid in march of 2020. he spent weeks on a ventilator and later had a double lung transplant. >> it was hard. i was in the hospital total of about seven months. they told me if i got it again, i would die. >> reporter: even though he was vaccinated, this month he tested positive again. but he says his recovery was much easier. >> i think they know how to treat it better. they have more medicines for it. >> reporter: public health officials are also looking at the sub variant, popping up in more states, california, washington state, utah among others. health officials are looking at that and so are vaccine manufacturing. for example, moderna now says that phase two trials for an omicron-specific booster shot are under way. some good news, as you mentioned, cases are dropping and also americans are starting to get these free at-home rapid test kits from the federal government. they're just starting to arrive in the mail. >> gabe gutierrez, thank you so much. joining me is dr. wesley long, the medical director of diagnostic microbiology at houston methodist. your hospital has already identified several cases of this new stealth variant of omicron. what can you tell us about it? >> jose, i can tell you thus far we've only detected two cases ba.2, what we collison of omicron. the stealth name is -- all our pcr tests are able to detect ba.2. i don't want people to get the idea that we can't detect it. it's definitely something we'll be keeping an eye on in the weeks ahead. >> do the the antigen tests find this son of omicron? >> to the best of our knowledge, the antigen tests that are popular in the u.s. can detect the ba.2 as well. it's a way to make sure the tests approved in the u.s. can detect it. we can confidently say our pcr tests that we use here at houston methodist are able to dedeath ba.2 without any difficulty. >> what do we know about ba.2 versus omicron original? >> the ba.2 variant is closely related to the original omicron, and they both emerged around the same time and were first detected in the same parts of the world, in south africa, the first to report both of these variants, the ba.1 omicron that's common here and then ba.2. they arose around the same time. the reason ba.2 has gotten attention is in certain parts of the world, india and denmark in particular, it seems to be doing particularly well at increasing along with the ba.1 omicron. here in the u.s. we've only seen a handful of cases and it remains to be seen what will happen with ba.2 compared to ba.1. >> doctor, let's talk a little bit about long covid. a new study published in the journal "cell" says there are four factors that could indicate if a person could experience long covid? >> so i think the most important thing to know for long covid -- again, one of the reasons you don't want to get covid, is to avoid the possibility you would contract long covid. your best defense is going to be vaccination, getting your two-shot vaccine and getting the third shot if you're eligible. that's really the best thing. i think long covid is very heterogenous set of syndromes that deserve study. we have a long covid center here at houston methodist to help these patients and try to get them connected to the care resources they need. again, you don't want to get long covid. any time you're infected with covid, you're putting yourself at risk of that. the best way to prevent that is vaccination. >> dr. long, thank you so much for being with me this morning. there's so many questions about all this evolving -- doctor, i want to ask you -- i was speaking with dr. fauci earlier this week about the possibility that we could be kind of seeing ebb and flow, right, of omicron, delta went down and then omicron hit and now omicron is dropping in most of the country and then this son of omicron may or may not be. do you see like a wave pattern that we're going to be living through? >> soho say, i think all of us two years in are tired of these repeated surges. unfortunately, every time we have a surge, some people will predict, oh, maybe this is the large surge, and it's going to become the common cold. certainly all of us hope that's true. if omicron has taught us anything, after the delta wave -- delta was so much more contagious. many of us thought whatever came next would be based off delta. omicron came out of left field, a whole different branch of the covid family tree. i think really the issue is -- and peter hotez has spoken to this as well as other experts, until we get a high level of vaccination everywhere around the world and we stop letting the vaccine transmit at will in populations of people in some parts of the globe where they don't have good access to vaccine, until we can help bring that cycle under control,i think we're still at risk for another wave and a new variant emerging from a population or animal reservoir somewhere, and that's the unfortunate truth. i wish i could sit here and tell you the pandemic is over, but i think it's still premature until we see what happens after omicron, what happens with ba.2 and how we can do in vaccinating the world against covid-19. >> dr. long, thank you so much for being with me. i so appreciate your time. >> my pleasure, jose. still ahead, conditions are growing more and more dire in afghanistan now that the taliban is in charge. the extreme measures people are taking to be able to survive, to feed their starving families coming up next. you're watching "jose diaz-balart reports." g "jose diaz-balart reports. doug blows several different whistles. 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need indeed. indeed you do. indeed instant match instantly delivers quality candidates matching your job description. visit indeed.com/hire 46 past the hour. the humanitarian crisis in afghanistan is deepening this morning. widespread poverty in the aftermath of the taliban takeover is forcing many afghans to take drastic steps just to survive. i want to warn you some viewers may find what you're about to see distressing. sky news special correspondent alex crawford reports on the dire conditions from herat, afghanistan. >> reporter: they've all sold their kidneys to survive. the organ trade isn't new in afghanistan, but it's just gotten more desperate. every single person here is hungry, and poverty is driving already poor people to even more extreme measures. this man tells us we have no choice, we've already sold our kidneys. now we've got to sell our children, and they're suffering terribly. the taliban takeover meant a massive cut in aid and these are people with few options. we've taken efforts to conceal their identities for their own safety. it's a highly conservative society, but i'm allowed into a room with the women. they agree to me filming their scars, some just a few months old. the women have sold their kidneys for less than the men, around $1,500 an organ. there's a lucrative trade with many organs going to iran, but the money is still not enough. most of these women are still teenagers with multiple babies but few rights. now they're being forced to sell their children so they all have a better chance of survival. no one can tell me to sell my children but we're struggling to keep them alive, she says. that's why we thought of selling them, better for them and we get food for the others. it is a tragic situation and one they see no quick end to. >> there's a lot of women there who have sold their kidneys and are now thinking of the last option which is selling their children, too. the aid is fought over, what is here is far outweighed by the huge need. it's really very hard in afghanistan right now, she says, and there are too many people like me who don't have a husband or a father to support them. for women who aren't allowed to work under the taliban and aren't even allowed to complain about that, it's misery on mistery. she's crying telling us her bag of flour has been stolen. i don't know what i'm going to do, she says. for aid is not feeding into the country whiels s politicians are holding power because they're holding the guns. you can ask everyone here, they're happy this fighter says, security is good. a man interrupts, yes, security is good, but we don't have any money or food. the children's ward of herat's burn unit, full of people trying to keep warm in mid winter. isha is in constant pain with both hands and both feet very badly burned. her family can't afford to pay for the dreggings for her wounds which are now infected. without surgery in days, she'll die. surgery comes at a cost they can't afford, and both her grandmother and her doctor know this probably seals her fate. she'll be taken home to die there. >> i have a bad sensation because of lack of materials. i have the ability to treat him, but the lack of materials, the bad situation of the people, they let me help him as much as i can. back at the community outside of herat where whole families have sold their kidneys, we're with the alreadyr kidneys. he urges this family not to sell one of his babies. >> translator: i urge the loan, please don't leave us alone, he said, stop this tragedy when people are selling their bodies. but both parents have already sold their kidneys and have a child that starved to death. these are decisions no parents want to break but hunger can break even a mother's bond with her babies. >> please don't leave us alone. that's what he asked. you be the judge. sky news, alex crawford, thank you. we'll be right back with more news. thank you. you're watching" jose diaz-balart reports." t reports. diaz-balart reports." jose diaz-balart reports." 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