court seat. we will look at what his death means for the future of the court and this is presidential race as well as scalia's judicial record from backing the citizens united campaign finance decision to striking down parts of the voting rights act at which he called perpetuation of racial entitlement. >> i think it is a true bit of, very likely to be double, the phenomenon that is called perpetuation of racial entitlement. it has been written about, whenever society adopts racial entitlements, it is very difficult to get out of them to the normal political process. amy: plus, we will discuss the latest republican debate, where donald trump accused george bush of lying to invade iraq. all of that and more coming up. , welcome to democracy now!, democracynow.org, the war and peace report. i'm amy goodman. supreme court justice antonin scalia has died at the age of 79. for nearly 30 years, scalia was the leading conservative force on the bench, known among other things, for his opposition to the voting rights act, gay rights, to support for gun rights. he died saturday at a hunting resort in west texas. president obama, who has 11 months remaining in his term, said he will nominate someone to fill the empty seat. myi plan to fulfill constitutional responsibilities to nominate a successor in due time. there will be plenty of time for me to do so and for the senate to fulfill its responsibility to give that person a fair hearing and a timely vote. these are responsibilities that i take seriously, as should everyone. but bigger than any one party, they are about our democracy. amy: senate republicans are bound to block president obama from filling scilly supreme court seat. the next justice could tilt the balance of the supreme court am a which is been left with four conservatives and four liberals. the vacancy could have an immediate impact on how the now eight person court will rule in includingy cases, aborti, which is just two weeks away. more after headlines. in afghanistan, the number of civilians killed or injured has risen to a record high for the seventh year in a row. the united nations more than 3500 civilians were killed and more than 7400 injured last year, an increase of 4% over the year before. danielle bell, director of the u.n. human rights program, outlined the findings. >> the overall 4% increase resulted mainly from a rise in suicide and complex attacks carried out in kabul city as well as the taliban offensive in kunduz last year. in most parts of afghanistan in 2015, civilian casualties decreased. civilian,000 casualties, one in 10 was a woman and one in four was a child. women casualties increased by 37%, while child casualties increased by 14%. amy: the report came as taliban suicide bombers using humvees captured from the afghan army attacked a checkpoint in helmand province, killing six members of the security forces. in syria, airstrikes have hit two separate hospitals. doctors without borders said eight staff are missing after a facility it supports in idlib province was repeatedly. separately, a missile reportedly hit a children's hospital in the rebel-held town of azaz, killing 10 people and wounding more than 30. both russia and the searing government of conducting strikes in the area. saudi arabia has deployed warplanes to an airbase in turkey and repeated its offer to send ground troops in syria. meanwhile up to 40,000 refugees fleeing violence have settled in camps along the turkish border inside syria. a new tally from the united nations finds more than 80,000 refugees and migrants have arrived in europe by boat so far this year alone. more people arrived in the first six weeks of this year than the first four months of last year. melissa fleming, spokesperson for the u.n. high commissioner for human rights, said more than 400 have died trying to cross. >> also to note, we continue to say this is a refugee crisis because according to our profiling and the statistics we received from the greek government, over 91% of those arriving in greece come from the world's 10 top refugee producing countries. in the top nationalities are coming from syria, afghanistan, and iraq. amy: saudi arabia's offer to send ground troops into syria come as the u.s. ally faces closer scrutiny over its bombing of yemen. on saturday night, a saudi-led airstrike hit a sewing factory and electronics warehouse in the yemeni capital sanaa, reportedly killing 18 people, including a 13-year-old boy. meanwhile, the human rights watch has released new evidence the u.s.-backed, saudi-led coalition is using internationally banned cluster munitions supplied by the united states. cluster bombs are designed to fan out over a wide area and their submunitions often fail to explode, posing a massive risk to civilians. the associated press is reporting four american journalists have been arrested in bahrain while covering protests surrounding the fifth anniversary of the gulf nation's pro-democracy uprising. the 2011 protests by bahrain's shiite majority against the sunni-led monarchy were among the largest seen during the arab spring, but they were crushed with the help of saudi arabia and the united arab emirates. bahrain is a close u.s. ally home to the navy's fifth fleet. , pope francis took aim at drug cartels and mexico's corrupt elite during a visit to one of the cities most impacted by the u.s.-backed war on drugs. north of mexico city, ecatepec has one of the highest murder rates in mexico and is particularly known for the unsolved murders of scores of women. montserrat correa, a student from the city was among those , who watched the pope's mass. high level of crime, so many assassinations, the dangers we live with daily as women come it is very difficult in this country, in this state, anywhere we fear that something will happen to us. and our families are already worried -- always worried that we won't return home. amy: the pope stopped in havana, cuba where he held a historic , meeting with russian orthodox patriarch kirill. it was the first meeting between a pope and the head of the russian church since the two branches of christianity split in the 11th century. meanwhile, in other news of healing ties, cuba and the united states are expected to seal an agreement this week to resume scheduled commercial flights between the two countries for the first time in more than 50 years. israeli authorities killed five palestinians and critically wounded a sixth sunday, accusing them all of attempted attacks in the israeli-occupied west bank. no israelis were injured in any of the incidents. authorities said they killed two palestinians who shot at israeli forces with automatic weapons. in a separate incident, soldiers killed two 15-year-olds they accused of throwing rocks and then opening fire. and in two other incidents, israeli officers shot palestinians accused of wielding knives, killing a 17-year-old and wounding a 21-year-old woman. haitian lawmakers have chosen an opposition senator to serve as interim president for 120 days after disputed elections left the country without a president. former parliament head jocelerme privert served as interior minister under former president jean-bertrand aristide, who was ousted in 2004 in a u.s.-backed coup. and in other news from haiti, patrick elie, longtime pro-democracy activist and haiti's former secretary of state for public security under aristide, has died at the age of 66. in 2011, he spoke to democracy now! from port-au-prince on the first anniversary of the devastating earthquake. >> it is going to take time, but i do believe the earthquake is also a signal for us to build haian democracy unsound foundation, which means the neighborhood committee, the grassroot organization, instead of trying to build a democracy from the top down, that is how we build our houses in port-au-prince and you saw what happened. amy: patrick elie died of internal bleeding at a hospital in port-au-prince on friday. he was 66. and those are some of the headlines. this is democracy now!, democracynow.org, the war and peace report. i'm amy goodman. juan: welcome to all of our listeners and viewers from around the country and around the world. with saturday's death of justice antonin scalia, the most important conservative voice on the court in decades, the nation may be heading into a constitutional crisis. senate republicans are vowing to block president obama from filling the supreme court seat left by justice antonin scalia who died on sarday at the age of 79. the next justice could tilt the balance of the supreme court, which has been left with four conservatives and four liberals. obama, who has 11 months remaining in his term, said he will nominate someone to fill the empty seat after the senate returns to session on february 22. but republicans are claiming the next president should be the one to fill scalia's seat since this is an election year according to a count by thinkprogress, the senate has confirmed 17 supreme court justices during an election year -- most recently in 1988 when the senate confirmed anthony kennedy. for nearly 30 years scalia was , the leading conservative voice on the bench. he was appointed by president reagan and approved by a unanimous vote in the senate. joe biden who was chair of the , senate judiciary committee at the time, said later "the vote , that i most regret of all 15,000 votes i have cast as a senator" was "to confirm judge scalia" -- "because he was so effective." amy: scalia promoted the idea of "originalism" claiming the u.s. constitution should be understood in the context of the 18th century era when it was written. in 2003, he wrote the dissenting opinion in the case lawrence v. texas that struck down a texas law that made gay sex a crime. scalia wrote -- "today's opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda." in he voted with the majority in 2000, the bush v. gore case to stop the recounting of ballots in florida securing the , presidency for george w. bush. in he voted with the majority in 2010, the citizens united case opening the floodgates for , unlimited corporate spending on election campaigns. three years later in 2013, he joined the majority striking down parts of the voting rights act of 1965 in the shelby county v. holder case. and in the 2014 hobby lobby case scalia and the majority ruled , in a blow to women's access to contraception that private businesses can be exempted from certain laws on religious grounds. juan: the death of antonin scalia could also have an immediate impact on how the now eight-person court will rule in several key cases on the docket this term including abortion, contraception, unions, voting rights, affirmative action and immigration. as well as status issues relating to puerto rico. to talk more about the death of antonin scalia, we are joined by three guests. ian millhiser is a senior fellow at the center for american progress action fund and the editor of thinkprogress justice. he is the author of the book, "injustices: the supreme court's history of comforting the comfortable and afflicting the afflicted." his latest piece is headlined, "the simply breathtaking consequences of justice scalia's death." linda hirshman is a lawyer and historian. she's the author of, "sisters in law: how sandra day o'connor and ruth bader ginsburg went to the supreme court and changed the world." and scott horton is human rights attorney and contributing editor at harper's magazine. he is also a lecturer at columbia law school. and scott, your reaction to the death of scalia and what it means now in terms of what will happen at the supreme court? >> we could talk about the roberts court, for instance, or the rehnquist court before that, but to certain extent of courts, this has been for the last generation, the scalia court. scalia has been the brains behind movements conservatives some within the judiciary. he'd china his opponents are having a liberal political agenda, but it is plain enough he is at a conservative political agenda, one which focuses on halting the wheels of time, essentially, standing up to history and saying, stop. he is the first figure who is developed consistent jurisprudential full also be to support that. so his role is extremely important. and his to parker from the court immediately shift the nature of the court will step amy: ian millhiser, this piece he wrote, the breathtaking consequences of scalia's death, justice scalia died on a hunting trip in marfa, texas on saturday. that he washe cases most involved with, defined the court with, and what his absence will mean beginning with now a four to four court and then what is going to happen with the senate, the republicans threatening not to hold a hearing for a new supreme court justice. >> sure. i will offer some mild his agreement with what scott just said because scalia hasn't just been his korea -- career halting the wheels, in many cases he tried to make them go in reverse. this term was a term weather was the potential for a lot of regression to happen. there is a direct assault on public sector unions. there will not be five votes to let that case go forward. in a way it will be harmful to those unions. there's a big districting case that could have shifted power away from latino communities and toward white communities. that case now will have five votes to get the result the plaintiffs wanted. and then there are two huge reproductive rights cases where at the very least, there won't be five votes in order to shrink women's rights in that respect. the problem, though, is when you have a four to four court, what happens in the lower courts winds up mattering a great deal because the ordinary rule is when the court evenly divides, the lord court order stands. there's some chance or will be some re-arguments in cases where they split, but even then, the lower courts order is going to stand in the interim in most cases. so you can wind up in this weird situation, and you probably are going to wind up in the situation in some of these cases, where the law, say, an arkansas or the court of appeals there shrunk women's rights to access birth control is going to be different in pennsylvania where this rights remain more robust. juan: ian millhiser, specifically on the issue of, for instance, immigration, that could have a negative effect because the lower courts basically have struck down president obama's executive order granting temporary status to 5 million undocumented immigrants. so if the court was not able to rule on that, that those lower court decisions would stay in effect, right? >> yeah. there's the potential for some pretty unprecedented chaos. what happened in immigration case, the lowercase desk court was the fifth circuit, said the program is illegal. but there's really nothing preventing some other litigant, maybe even the government itself, from going to a more liberal circuit and getting an order saying the program is legal. normally when you have conflicting orders like that, what would happen as the supreme court would resolve it. if the supreme court could not resolve it -- i do not know of a president for what happens when you have one circuit saying there is a nationwide injunction blocking this program, another equal circuit says that the program is legal in the supreme court can't review it. it is a recipe for chaos. you writtenirshman, an interesting "washington post" piece and you talk about the lower courts and what exactly they mean when cases are turned back in a 44 decision -- four to four decision. >> right. just a pickup on what ian was then, if the court is split, then the decision of the lower court stands. so in question to the religious situation, letting female ploys contraception, the circuits are split. so female employees of religious institutions in the one circuit which said it was illegal to do thehe churches to paperwork, will not be able together contraception paid for and the women living in all of the other circuits will be able to get the contraception paid for. so what you have on the ground -- for example, the death penalty. i'm very interested in the death penalty matter because florida, which has a tremendous amount of executions, is in the liberal -- in the blue dominated 11th circuit, where as texas is in the red dominated fifth circuit. so you could have people being killed by the state, otherwise known as the death penalty, in florida and just a few hundred miles away in taxes, have them -- i'm sorry, have them not being killed in florida and have them being killed in texas. this is truly a recipe for chaos. as it happens, the states covered most of the circuits are dominated by democratic appointees. so most of the circuits are what 13 unitede, of the states courts of appeals, nine are dominated by the democrats. and only four by the republicans. so two thirds of americans will be living in blue circuit america, while only one third of americans will be living in red circuit america. in their lives will be very different. juan: linda hirshman, what is the possibility of the court just deciding to postpone decisions on several of these key cases that we had mentioned that are supposedly coming up for decision in this term? >> so this is something that the court has done. for example, when i was doing research for my book on o'connor and ginsburg, i looked hard at justice powell who sat with o'connor for so long. how was sick and was away for several weeks. what the court did without saying a word about what they were actually up to was the took thek the faith -- cases were they knew or suspected that powell would be the deciding fifth vote and they put those off, waiting for him to come back. that therence is now justices have no idea when there might ever be a night justice. so if mitch mcconnell is true to his word, then it will be january of 2017 before there's any possibility of a night justice. that is 11 months away. so it is hard for me to imagine that would be putting cases off for 11 months. amy: this is key, ian millhiser, this issue of putting this off. you have justice scalia who was a strict constitutionalist. i mean, it is very clear that the president chooses the next supreme court justice, and of course, has to be approved by the senate. wouldn't be a dereliction of duty -- i mean, president obama is in for almost another year, for him to not just name someone? >> he was suddenly be a dereliction of duty for the president not to nominate someone. amy: right. then send it to the senate. >> but what this potential crisis highlights is just how political the court has become. i mean, you are going to have the spectacle of potentially having a seat open for at least a year, and probably for more than a year -- possibly for more than a year because if a year from now we have president clinton or president sanders, but we still have a republican senate, there's no reason to think that republican senate is going to want clinton or sanders to fill that seat. we have a case where the republican party has decided to play constitutional hardball and fight as hard as they can to keep that seat open. and there's one other thing to bear in mind, there are three other justices on the court right now who are very elderly. so in a few years, we could have four open seats. you potentially still have a democratic president and republican senate, and no possibility of filling those four seats. when you go to the supreme court, it is not clear as a matter of law that there are able to hold hearings of daily have five justices, but even assuming they are, there will be four vacant seats. juan: scott horton, what about the issue of what happens from here on in and also the choices that president obama had? does he name of more moderate justice and then really make it difficult for republicans to continue to block a nomination, or does he attempt to go to a more liberal justice and really sharp and the upcoming election, the choices that voters have when they are electing a president? >> to me, the political elements here have never been sharper for the supreme court. i think we are going to see the full issue of the supreme court front and center in the election campaign for the new president. it is always there in the final rounds of the election, we usually have candidate saying, who is selected now, the president will determine the makeup of the supreme court. and now we're in a position where that literally is going to be true. so it will be central. as for obama's options, it seems to me he is going to be -- he is one of play a tactical game at knowing the republican majority and their leader. and it seems to me the republican's have put themselves in the position in which there are going to be subject to ridicule based on their own conduct. it is likely that he will put forward a nomination of a moderate with outstanding credentials and probably someone who has recently been approved by the same republican senate by a strong vote. and watch them cope with that. because i think if their tactic is simply to block, that is not going to help them in the presidential election. juan: what would be -- who would be some of those potential folks? cited most commonly figure right now, but i think we have a group -- principally, court of appeals judges who were approved over his two terms as president who have gotten substantial support, including support from republicans. there are a half-dozen of them in the holding pen right now, and any of them may be put forward. but i doubt it is going to be the less equivalent -- left equivalent of a scalia. it'll be more of a moderate, more disinterest, someone who in normal times wouamy: ian millhik about sri and who he is and his significance? >> sri, i seem to argue cases before. he is one of the most brilliant litigators. he also clerked for two republican judges, for republican court of appeals judge in the first sandra day o'connor on the supreme court. he spent many years of his career at a major corporate law firm, so he is very much perceived as a sort of middle-of-the-road moderate. the sort of candidate a democrat would put up if they wanted to extend an olive branch and say, look, i'm going to meet you halfway hereby picking someone who would not necessarily be a democrat first choice, but someone who everyone agrees is an extraordinary intellect, someone who was confirmed 97 to zero when he was confirmed to his current job on the second-highest court of the land. so i think sri will be attractive to the white house. there are some other candidates, paul watford -- amy: sri srinivasan would be the first indian american. he is young, 48 years old. labor unions were not thrilled when he went up to this court, not feeling that his history representing corporate class would bode well for them. >> yeah, that's right. what you're looking at with sri, again, the fact that he has certain kinds of clients as a lawyer doesn't necessarily predict how he is going to act as a judge or a justice, but everything we know about him now ands us brilliance centrism. amy: can you talk about paul watford? >> sure. judge watford is a judge on the ninth circuit. he is a similar resume to sri. he worked at a corporate law firm for many years will unlike sri, judge watford was a clerk for justice ginsburg. so he is a similar profile of someone who is been at the top of the profession at the beginning of his career. a great intellect. someone who should not be perceived as a bomb thrower and should be perceived as more of an olive branch because he spent most of his career not doing anything that is really associated with liberalism, just going out there and making money as a lawyer. so if it is watford, if it is sri srinivasan, if it is either of those judges, under normal circumstances, that would be an olive branch to the republicans. amy: linda hirshman, can you talk about kamala harris, attorney general of california, running for senate to fill barbara boxer's seat? isshe would be my selection she passes the vetting process. i would just love to see the next several months occupied with a bunch of old white male republicans counting on the first asian-american, african-american attorney female attorney general of the state of california. but i think it is mostly about the optics. as i listened to my colleagues just now discussing the pros and cons of the olive branch possibilities and so forth, i think that none of this really theers at all because republicans, as far as i have been able to observe, do not care about the universal perfect logic and the fact that sri srinivasan was confirmed 97 to nothing just recently is an argument which reasonable people would make. but i don't the get matters. i think this is about our and toics and if you are going be realistic about what is going to happen, then you have to think about who would make the most optically advantageous appointment. wouldthink kamala harris be very high on my list of people who would do that. that being said -- juan: i'm sorry, another person who has been mentioned is jane kelly from the eighth circuit court of appeals. could you talk about her? inclined more in the direction of an african-american woman like kamala harris. aboutt think that it is the woman thing right now. amy: because? >> because i think it in african americans to go to the polls of sufficient numbers to elect a democrat president of the united states is the critical political issue right now. obama's numbers from 2008 to 2012 went down among hispanics and whites. and only a robust african-american vote was effective in 2012. so i'm thinking politically about this. the republicans are looking at their red states -- arizona, for example, where i live in the winter, will be in the very liberal ninth circuit. they are looking at their constituents living under the governor's of very liberal blue circuits. and they're looking at -- i want them to look at the most attractive politically attractive possible nominee. juan: i want to ask scott horton , with the current split in the court, we have all of these big cases coming up this term, have to be decided by june, what is your sense of what the fallout will be on some of these cases, if any, that the court may go ahead with? >> i think labor unions can breathe a huge sigh of relief right now because they were probably looking at a really powerful, adverse ruling on the , coming in onee major case. and one fundamental role here is , it doesn't matter how the justices voted in conference or the discussions that went on, the vote that is taken has to be the vote as it existed at the time the ruling is handed down. so nothing that has happened up to this point matters. we're dealing with an eight-member court on all of these rulings. but i think coming back to what ian said at the beginning, we're looking at a court that is likely simply to a polled the rulings below -- uphold the rulings below. so as in the immigration rights case and the voting rights cases coming out of texas where there is a conservative ruling from a conservative court of appeals that is likely to be sustained, i think, and where he was a more progressive ruling, that will be upheld. amy: ian millhiser, before we get a break, if you could talk about what justice scalia is talkingr, whether we're about his support for gun rights, his opposition to same-sex marriage and lgbtq writes, whether we are talking about abortion, talk about his history, this history of man who was appointed by ronald reagan. >> sure. i think justice scalia is a very tragic figure. if you read a lot of his scholarship, he would articulate a theory of judicial restraint that i think is an honorable, this notion that we should be cautious about courts getting too involved in our lives and that we are democracy and democracy should roll. as a scholar, think he made for interesting arguments. but as a judge, he often lacked the character, the self-control to live up to the arguments he made as a scholar. the two most striking cases are the two cases where he wrote -- the first one he joined a vicious dissent to his own opinion in another case, and in the second one, he attacked his own theory of judicial -- statutory interpretation that he laid out in a 2012 book. he was a great scholar. i wish that he of an able to live up to his own ideals. but impartially, all too often, i think he let ideology and partisanship get in the way of some of the more idealistic notions he articulated as a scholar. juan: scott, i want to ask about the irony of scully of being a proponent of regionalism, faithfulness to the letter of the constitution and yet now the republican majority say the president should not really decisive powers of the constitution gives him to name the next supreme court justice. >> i think it is highly ironic. this was a politically driven conservatism. i think scalia's conservatism is unlike what we've seen through most of american history. you is sort of a southern european throne type of conservative. and not the sort of more progressive conservative that embraces some liberal values we've seen through most of american history. thatme up with a formula would sustain that, which was to try and freeze the country in at 1789,titutionally which was a framework that gave him more ballast for his arguments, but certainly did not help him win every case. i think his zeal -- he undermines himself with his own seal over and over again, especially the last two years. he would attack the majority on case after case saying x, y, the was because it was of their opinion and you will see, then that comment was used by district courts to sustain a more radical interpretation of the majority's opinion. amy: we're going to go to break and then come back to this discussion. i want to thank ian millhiser, of "theing us, author simply breathtaking consequences of justice scalia's death." and linda hirshman is staying with us author of, "sisters in , law: how sandra day o'connor and ruth bader ginsburg went to the supreme court and changed the world." and we're joined by scott horton , human rights attorney and crew to ridding editor at harper's magazine. kimberle crenshaw will be joining us. we're talking about the death of justice scalia and what happens next. stay with us. ♪ [music break] amy: this is democracy now!, democracynow.org, the war and peace report. i'm amy goodman. with saturday's death of justice antonin scalia, the most conservative voice on the court of decades, the nation may be heading into a constitutional crisis. senate republicans around to block president obama from filling justice scalia's's. we're joined by three guests, linda hirshman is still with us from phoenix, arizona, lawyer and historian, authors of "sisters in law: how sandra day , o'connor and ruth bader ginsburg went to the supreme court and changed the world." we are joined here in new york by scott horton human rights , attorney and contributing editor at harper's magazine. he is also a lecturer at columbia law school. in a moment we will be joined by kimberle crenshaw, professor of law at ucla and columbia university. we're going to turn to scott horton. juan: scott, i want to ask you about scalia's last decision, which was on a clean power case last tuesday, a decisive vote on that as well. could you talk about that? >> i think it is clear right now that injunction issued by the supreme court would not have been -- would not be issued today. his vote was essential to get it over the hot. that was a radical move. there's really no precedent for the supreme court issuing an injunction staying pending argument in the supreme court regulations of general applicability. amy: to be clear, this was a struct and regulations of coal powered plants, which was really the centerpiece of what come on u.s. position at the yuan, summit in paris. >> precisely. i think this decision got a more attention overseas than it got in the united states because we saw number of european nations focused on the fact that it looked like the supreme court was going to block united states implementation of the paris accord because these regulations were right at the core of it. and now there clearly is not the majority within the supreme court in support of that injunction. but we're going to have to see either there'll have to be a motion for rehearing of the waitr by the general or the final decision, but it is no longer as clear that the situation ominous for barack obama on his regulations. amy: let's turn to kimberle crenshaw, who is just joining us from santa ana, california, professor of law eight ucla and columbia university. of significance of the deaths justice scalia? >> i think this is probably the most significant thing to happen on the supreme court, at least in the last three decades since he was actually appointed. but i really think the challenge and the way we talk about it is being able to make it clear that while justice scalia was enormously influential and some would even say he was an interesting person, what is not really being said as much as it should be is just how devastating his legacy is. what many people i think don't really understand is how much their rights really turn on the interpretation of the supreme court. and in that context, justice scalia was a person who effectively bludgeoned the life out of the living constitution, the constitution that gave us desegregation, gave us women's rights, that gave us environment protections and political access. so when we think and talk about his influence, we have to think about it and talk about it in ways that give people a strong sense of how significant his judgments were and what this moment presents an opportunity to do, which, frankly, is to recover or reclaim some of what made the constitution so powerful as a source for equal rights. juan: kimberle crenshaw, we've aked the other guests, and want to ask you, your sense of what this means in terms of the possibility that we now face a potential gridlock in the supreme court, so much of the gridlock we have in congress in terms of being able to get things done as a result of partisanship? >> well come a i agree with all of the other guests, that what we're looking at if mitch mcconnell is able to stand firm they willim that delay, delay, delay, there will be chaos. and within that chaos there will be some victories that might not have happened as always, you know, is the case when you have the supreme court in the position of nearly affirming some of the decisions below. but i really think the more fundamental opportunity that this presents is to really point out that the originalist claim is truly an ideological one that is more directed to particular outcomes rather than any coherent position. the founding fathers would be appalled by the claims of mitch mcconnell and many of the republicans that the president doesn't have a rolled up late andnominating a replacement the senate can just choose to delay because they don't like the potential ideological direction that this nomination or percent. i think it is important for the american people to know the position of originalism is not an originalist position. this is an opportunity to understand that and see what difference it makes and how we go about thinking about the supreme court. amy: i mean, isn't it true that probably they understand that president obama is going to nominate someone? i mean, and the last cases where there was the announcement of someone retiring, yes announced a name within 30 days. so it is pretty clear he is going to move forward, but what this does, this kind of pressure does is it pushes him to name a more conservative candidate for the supreme court. i wanted to ask linda hirshman about one of the cases coming up very soon on march 3, the case of whole midsouth, on march 2, the case of whole women tell in texas. this is the case of abortion. can you explain the significance of this case of what this scalia -less court will do? >> it involves a very onerous law in texas, which requires abortion clinics to have affiliations with -- would mostly drive most of the abortion clinics out of texas, creating an abortion free zone in texas. the lower court is the red or conservative fifth circuit. so they had said the law was good. some batting about whether the supreme court would break five to four with kennedy switching to the liberals to strike down the texas law. is, essentially again on kennedy. if kennedy switches to the liberals, then the law will be struck down five to three. if kennedy stays with the conservatives, then the court will, exactly -- amy: we just lost linda hirshman , lusty satellite in phoenix, arizona. she is a lawyer and historian and author of "sisters in law: how sandra day o'connor and ruth bader ginsburg went to the supreme court and changed the world." >> there would be a split four to four and the ruling of the lower court would stand, which extends the likely evolution of a divided country by judicial districts. the blue courts of appeals will probably strike down efforts done or mine abortion rights whereas the red courts of appeals will sustain them. amy: we're going to switch gears, take a break. when we come back, we will talk about the latest republican debate. had justntonin scalia died. there was a lot of discussion about him, and there was a lot of debate around, for example, donald trump attacking jeb bush, around george bush's going into the war in iraq saying that george w. bush lied. we will stay with our guest and talk about that debate in a moment. ♪ [music break] amy: justice scalia was an opera fan. this is democracy now! juan: we turn to saturday nights debate in greenville, south carolina, the net republican debate of the election cycle. donald trump and jeb bush had a tense exchange over george bush's record in iraq. iraq isusly, the war in a big fat mistake, right? you can take it anywhere you want. -- if you're ah member at the beginning of his announcement when he announced for president, he took in five the mistake it wasn't a mistake. it took them five days before his people told him what to say and he ultimately said, it was a mistake. twowar in iraq -- we spent dollars julian, thousands of lives, we don't even have it. the is taking over iraq second largest oil reserves in the world. obviously, it was a mistake. george bush made a mistake. but that one was a beauty. we never should have been in a rack. we as these stabilized the release. so sick of barack obama blaming my brother for all of the problems he has had. and frankly, i could care less about the insults that donald trump gives to me. this blood sport for him. i'm glad he is happy about it. but i'm sick and tired of him going after my family. my dad is the greatest man alive, in my mind. [applause] and while donald trump was building a reality tv show, my brother was building a security apparatus to keep us safe. and i'm proud of what he did. [applause] gall to go -- >> the world trade center -- >> to go after my mother? amy: donald trump and jeb bush going after it during the presidential debate. theo rubio also debated record. >> on behalf of emi family, i thank god all the time that it was george w. bush in the white house on 9/11, and not al gore. >> how did he keep us safe? i lost hundreds of friends. the world trade center came down -- [boos] he kept us safe? that is not safe. the world trade center came down because bill clinton did not give osama bin laden when you the chance to kill him. rubio,e that was marco florida senator, presidential candidate. we're joined by david cay johnston, previously with "the , currently as" "usa today" columnist and syracuse law lecturer. his latest book is, "divided. the perils of our growing inequality." still with us, kimberle crenshaw and scott horton. why don't we begin with david cay johnston. your thoughts in this debate and donald trump really going at jeb bush on the issue of his brother george w. bush, saying he lied to get into the war in iraq? >> well, i think is was a very carefully picked audience that does not want to address the fundamental factshere. the republicans have worked very hard to make it sound like george bush did not mess up when we were attacked after he again warned and you recall george bush later said, what was i supposed to do because he had not a clue about what to do. so i think what you're hearing from that crowd was attacking trump for taking down one of the big myths, one of the big lies that is been sold by the republicans and the notion that a president donald trump would respect the constitution -- i think we should wonder about, notices use of the word "reign." president don't reign. juan: david cay johnston, i would ask about the debate in general. candidatesblican have debt with economic issues you have written so much about? >> i feel like my children that when i had children at home squabbling over a broken toy, there is no substance to them. all you have to do is compare the last of a credit debate where you had hillary clinton and bernie sanders talking about real issues, not as carefully as pick thecause we don't derators based on viewing skills but for entertainment value, but talking about real issues. and when you watch the republicans, by and large, it is like a bunch of children squabbling over a toy or who hit willie. a lot of personality. the republicans have allowed the candidates to be based by donald trump into personality matters in areas that act to his strength. so it is for a good, i think, that we are now seeing some audiences -- this one in greenville, south carolina -- push back with trump, unfortunately, it was about things trump said that actually have merit. asn: kimberle crenshaw, trump has dominated the republican contest so far, you have been part of a group called stop hate, don't trump. could you talk about the impact he has on this presidential race? >> i think we're seeing precisely the impact of donald trump on the coarsening of political discourse. many people point out that in terms of policy, when we look at z, for example, we are not looking at dramatic distinctions in terms of some of the things they of -- have been advocating for. our point is, donald trump is one of the only people to just actually come out and generate explicit racial stereotypes with respect to immigrants, for example, and muslims. frankly, in this particular media culture when the corporate media is dictated more by ratings than by any traditional role that journalism ought to play in a democracy, actually means that he is encouraged to do more damage to our basic sensibilities. so we began this campaign basically to try to rein in the extent to which this kind of fear mongering with explicit appeals to the basis instincts and many americans might be rolled back. now, having said that, and we still stand by stop hate, dump trump, it is fascinating how even a broken clock can be right twice a day. so in his conversation about the into -- or that we went damaging war that we went into based on largely fabricated information, is a fascinating development. we are really interested to see theher this debate between establishment and someone like trump actually has any traction in the broader american -- juan: there was a second theory that trump said, he understands would name the supreme court justice and he would if he was president. >> exactly right, i think. you understands power and the aggressive use of power, which is something to be concerned about here. but again, i think it shows trump's tactical brilliance. he understands how unpopular the leadership of the republican party is, so he has picked a couple of issues, which are the 9/11 issue, the fact there were no weapons of mass destruction that were found in iraq, he is big issues were he knows the leadership will line up in a circle to defend them, and they are wrong, they are untenable. and he will be alone on the stage taking that view. so tactically, very, very smart. indigo also on the issue of trade bills. he stands with bernie standers against these deals -- bernie sanders against these deals. >> year of the insurrectionist. amy: david cay johnston, you have covered donald trump for many years. we spoke to early on and now he is one the new hampshire primary, moving on to south carolina. what has surprised you, especially on this issue of his wealth, saying that makes an independent because, as he stresses all the time, he says, "i am rich, i am a billionaire"? >> first of all, i'm not surprised he is doing so well. said, he isrmally i serious about this and he might win the nomination. i also said i did not think he could be elected president, though with the circumstances like a terrorist attack in october that might put them into the white house if he gets the nomination. if he does get the nomination, i believe it will be the end of the republican party as we know it. the internal tensions of the party that are tearing at it, trump is exploding for his own benefit. the thing i'm surprised about is that journalists have not been tough at all with trump. my 21 questions that i wrote a national memo, no one is asking the questions about donald strug dealer helicopter pilot, about his dealings with the mob, about his failure to pay people for work and done for him, but vendors and employees. none of those things are being asked. went trump kept asserting through his tiny staff that he had a boiler room operations, multiple ones in new hampshire of people going door-to-door, the only place i saw anyone ask, well, show us these things, was on msnbc -- there may have been others -- but clearly, journalists did not look at what i am absolutely certain is a nonexistent ground game. so i'm surprised he is not been held to a tough standard about backing up what he says about his campaign. any cup professor crenshaw, you're in activist, but you often don't take on any particular republican presidential candidate within the primaries, but you have joined with kerry bill of 20 -- very belafonte, alice walker, jane fonda, lily tomlin and others in this stop hate, dump trump campaign. why him at this early stage? >> precisely for the reasons we just heard, what was so disturbing is the media have not asked him the tough questions. they have not taken seriously some of the most outrageous inks that he said, within days of saying that muslims should not be allowed to enter the country, he was both on news it shows and entertainment shows and in that context, there was no interrogation whatsoever. at least note effective interrogation. it was about, oh, that muslim thing. jimmy fallon said. because he is both an entertainer and a political figure and because he generates massive ratings when he comes onto television -- john amy: we have to leave it there, kimberle crenshaw, david cay johnston, scott horton. scott horton. our website democracynow.org - today on america's test kitchen: julia makes spanish braised chicken, jack challenges chris to a tasting of israeli couscous, and bridget makes israeli couscous salad. right here, on america's test kitchen. america's test kitchen is brought to you by dcs. dcs: manufacturers of professionally styled indoor and outdoor kitchen equipment. at dcs, our mission is design that delivers,