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U.S. Supreme Justice Antonin Scalia Dies At The Age Of 79. Aired 6-7p ET

Aired February 13, 2016 - 18:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[18:00:00] DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: And he was always so convivial. And you know, people understood he was a very conservative. But people of all stripes enjoyed his company. He was great company.

POPPY HARLOW, CNN HOST: David Gergen, thank you very much. Stay with me.

ANNOUNCER: This is CNN breaking news.

HARLOW: It is 6:00 on the east coast and we have breaking news. Very sad breaking news to bring you at the top of the hour, the death of U.S. Supreme Court justice Antonin Scalia. According to a government source and a family friend, Scalia died in his sleep during a visit to Texas. A government official says Scalia went to bed last night telling friends he was not feeling well. He did not get up for breakfast. He was found unresponsive in his room at the Texas ranch.

Just moments ago Supreme Court chief justice John Roberts issued this statement. On behalf of the court and retired justices I'm saddened to report that our colleague justice Antonin Scalia has passed away. He was an extraordinary individual and jurors admired and treasured by his colleagues. His passing is a great loss to the court and the country he so loyally served. We extend our deepest condolences to his wife, Maureen, and their family. Justice Scalia was the first Italian-American to sit on the nation's highest court. He was sworn in on September 26, 1986. He was 79 years old.

Our Joe Johns has a look back at his life and his legacy.

(BEGIN VIDEOTAPE)

JUSTICE ANTONIN SCALIA, SUPREME JUSTICE: I Antonin Scalia do solemnly swear.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT (voice-over): The first Italian-American to sit on the nation's highest court, Justice Antonin Scalia, was a conservative in thought but not in personality.

UNIDENTIFIED MALE: Justice Scalia irreplaceably has a pugnacious personality. And even in his early years at the court, that came out both in oral court argument where he was the most aggressive questioner and behind the scenes where the memos that he wrote inside the court had a galvanizing effect on the debate among the justices. JOHNS: He was able to light up or ignite a room with his often brash

demeanor and wicked sense of humor. Grounded in a profound respect of American law and its constitutional traditions.

UNIDENTIFIED FEMALE: Feisty, he can be belligerent. He can be - he is obviously very candid about how he feels about things. Loves to call it like he sees it. Completely not PC. In fact, prides himself in not being PC on the bench, in court.

SCALIA: I'm an Italian from Queens. This is the top of the hill.

JOHNS: A sharp mind combined with a sharp pen allowed Scalia to make his point both to the pleasure and the disappointment of his colleagues and the public.

UNIDENTIFIED MALE: He is very good especially with a lot of audiences that are predisposed to like him. I think he's incredibly disarming and kind of charming in his own way.

JOHNS: Antonin Gregory Scalia was raised in the Elmhurst neighborhood of New York City. The only child of a Sicilian born college professor and schoolteacher mother. They instilled in the precocious child a love of words and debate.

SCALIA: I was something of a greasy grind, I have to say. I studied real hard.

JOHNS: He was a top student at public and private catholic schools in the city. Here he is leading his high school band in the 5th avenue parade in 1950. Scalia's interest in law began in college, and so too an interest in Maureen McCarthy with whom he later married and had nine children.

His exuberant embrace of conservatism attracted the attention of Republicans. And President Reagan ultimately named the 50-year-old federal judge to the high court in 1986. There he developed a reputation as a reliable conservative. In his own style help livened the face of the high court.

UNIDENTIFIED MALE: Some of the other justices, including the justices on the court and had been on the court for a while were kind of like, well if the new guy gets to ask all of these questions, I'm going to step up and ask some questions too.

JOHNS: On abortion, the death penalty, affirmative action, homosexual rights, Scalia clashed early and often with moderate or left leaning bench mates.

UNIDENTIFIED FEMALE: At one extreme he would alienate some of his colleagues if he was trying to get anybody to sign in an opinion. It was harder when he would use more combative language. But, you know, as much as they would like to say, you know, I would like to strangle him, he was still there in many ways.

JOHNS: And those the sense helped him hone a creative, some said often cruel, strict in his writings becoming a master stylist. He once referred to the junior varsity Congress. He quoted (INAUDIBLE), Shakespeare and sesame street songs.

In a closely divided abortion case, he slammed Justice Sandra Day O'Connor's views as perverse and irrational.

Off the bench came admiration from young conservatives who wrote books and created websites and tribune, but controversy too. A hunting trip with vice president Cheney at the same time the court was considering a lawsuit against the number two over access to privileged documents. A Sicilian gesture some interpreted as obscene and captured by a Boston newspaper. He called it dismissive in nature. And this in on the war or terror.

[18:05:27] SCALIA: War is war and it has never been the case that when you capture a combatant you have to give them a jury trial in your civil courts. It's a crazy idea to me.

Should I known self be true --?

JOHNS: Justice Scalia, a man both respected and dismissed, feared and celebrated, combining equal amounts of personal levity and judicial heft.

UNIDENTIFIED FEMALE: He will be remembered in many ways. Certainly as this larger than life figure, lager than bench figure. Someone who embraced both the law and a life beyond the court.

UNIDENTIFIED FEMALE: He will go down as one of the great justices in the history of the Supreme Court. I think that his clarity of thought, wit, writing, you know, will be very difficult to match.

JOHNS: A judge who combined street smarts with a well-calculated conservative view of the law and its limits on society.

SCALIA: I'm not driven. I enjoy what I'm doing. As soon as I no longer enjoy it, I am out of there.

(END VIDEOTAPE)

HARLOW: Our Joe Johns reporting.

Let's talk more about the life, the legacy of a man who whether you agreed or disagreed with him ideologically, a man who served this country on our nation's highest court for 30 years. Justice Antonin Scalia who died at the age of 79. We were told he died during his sleep on a visit to a ranch in Texas.

With me on the phone, Steve Vladeck, a CNN contributor and also a law professor at American University. Your thoughts on his passing, sir?

STEVE VLADECK, CNN CONTRIBUTOR (on the phone): Well, I mean, Poppy, I think, you know, John's story has exactly right. Justice Scalia was an enormously polarizing figure during his 29 years on the court but he was enormously important figure, you know. I think he branched out and led the court new direction on topics from how to interpret the constitution to how the read (INAUDIBLE) to the scope of the executive power. You know, he wrote for the majority in the 2008 decision that reinvigorated the second amendment and right to bear arms.

And so, you know, he has lots of (INAUDIBLE) about the detractors but no one could have been seriously contest that he left an enormous impact on American constitutional law. And honestly that the court is going to be a different place without him.

HARLOW: No question about that. This also comes at -- it's such a critical time in this election, the fact that the court was so sort of nearly evenly divided, if you will, Steve. The fact that as our David Gergen put it one this election now controls not only the future of the White House and Congress and the weight of the parties in terms of their balance of power in Congress, but of the Supreme Court, all three branches of the government are now in play.

VLADECK: That's absolutely right. I mean, I think, you know, folks had already been saying before today's tragic news that this election was going to be largely about the Supreme Court. You know, Justice Scalia would have turned 80 later this year. Justice Kennedy will turn 80 later this year. Justice Ginsburg is 83. So the next president, whether he or she a Democrat or Republican, is going to have an opportunity to make several appointments to the Supreme Court, including appointments that are across the conventional party line.

So this is going to be transformative election for the court. You know, I think the really interesting question is what happens until then, you know. Is President Obama going to be able to find some kind of moderate nominee who the Senate Republicans might be want to accept or are we going to see an eight justice court for the rest of his term, you know, which is going to have an enormous impact on the high- profile cases, some of which were already argued and some that will be argued later this month, next month and then in April.

HARLOW: You know, it is interesting, I would like your take on a name that our Jeffrey Toobin, our Supreme Court expert threw out there, and that is judge Shah Reena Vosen. This is a justice on the D.C. circuit court who was appointed by President Obama. He was approved unanimously. And Jeffrey Toobin said look out for that name as a possible nominee. Your take?

VLADECK: Well, I mean, I think there's no questioning that Judge Reena Vosen is enormously qualified, that he would be a fantastic nominee. I think the real question is whether the Senate is going to be interested any nominee coming out of this White House or if they are going to just try to run out the clock on President Obama and not confirm a nominee before, you know, the elections and before next January. Certainly Judge Reena Vosen is a very highly skilled candidate. I'm sure there will be other names floated in the coming days and weeks. You know, I don't think the question is whether there's a bench for President Obama. There clearly is. I think the question is whether that's going to be any interest on the part of the Republican leadership in the Senate and being conciliatory on this or whether that they are going just try to do their best to make sure that the court stays with one seat open for the next ten or 11 months.

[18:10:28] HARLOW: And just to think about this -- thank you very much, Steve. Please do stay with me. I just want to bring David Gergen back in, our senior political commentator and also former advisor to four presidents.

David, let's talk about how times have changed. This is a justice who 30 years ago in 1986 was unanimously confirmed 98-0.

GERGEN: Yes, he was. It came at a time when he was on the court of appeals and Justice Rehnquist was an associate justice. And then president Reagan nominated Rehnquist to be a chief justice and there was an opening down on the court at the associate justice level and President Reagan then put forth Antonin Scalia's name.

The controversy then all surrounded Rehnquist. There were number recognized who, you know, how important it was going to be for the future of the court to have Rehnquist there. And so Scalia went through pretty easily. There was not a contentious fight. But what I do think you're going to hear, I want to come back to this, I think this debate tonight with the Republicans is going to be fascinating because you're going to hear the opening guns on this fight coming out for Republican candidates, especially Ted Cruz. It's important to remember that Ted Cruz clerked for chief justice Rehnquist, a law clerk for him. And he sees himself as a champion of a conservative court, among the candidates.

And what I think we're going to see is that Donald Trump will probably not want to let too much light appear between him and Cruz on this. He will probably rally to the cause of waiting. And then you are going to see the other candidates very likely line up in the same direction. So we are going to -- it's going to be -- I think the debate is the opening, even though we are in mourning and even though people need to be deliberate and pay respects, I think you're going, as I said, I think we are going to hear the opening guns tonight.

JOHNS: HARLOW: Absolutely. And as you so aptly and perfectly put it, David Gergen, this election will now control not only the White House, not only Congress, this will also control the future of the Supreme Court very likely, all three branches of the government. You cannot overstate the importance.

GERGEN: Yes. All three branches of government will be in play in this election. And that's the reason that the conservatives will argue with so much a stake, isn't it fair to give the people of this country a serious voice and the future direction of the court as well as a White House, as well as the Congress.

HARLOW: David Gergen stay with me. I want to bring in Danny Cevallos, also an attorney, one of our legal analysts here.

Danny, let's take a minute to step away from the politics of it, if we can. Plenty to be discussed on that. Just talk about the man, the man who served this country. When you sit on the high court it is among the most difficult demanding jobs. You can't overstate the pressure. For 30 years he served this country. Known, I was reading, as being very funny and jovial when we was off the bench. What else do we know about the man?

DANNY CEVALLOS, CNN LEGAL ANALYST: Hilariously brilliant. I mean, you have to understand, as an attorney, a former law student, I can picture at every law school campus throughout this country there are people toasting, remembering this giant in the legal community because to law students, to his fans, he was nothing short of a rock star. He was a celebrity. His fans were so rabid in a way they never were with any other justice before. And I would imagine going forward we may not see a personality like his again. A brilliant legal mine whether you disagreed with him or you agreed with his views. A brilliant legal mind and his ability with the pen was really unparalleled, really.

HARLOW: He was in the majority in Bush v. Gore in 2000. Also a 2008 case, the Heller case, in terms of individuals and their second amendment rights. Critical decisions.

CEVALLOS: Of course, always. And always at the forefront. Sometimes, you know, maybe not so much famous for when he was in the majority. Often equally a statement when he was in the dissent and even more so in recent years.

HARLOW: So what do you remember most in terms of a dissenting opinion that he penned?

CEVALLOS: In terms of dissenting opinions, well the most recent one where he said that he would sooner have his head in a bag than go along with the majority. That was in one of his opinions recently. I mean, that was, that was a bit of hyperbole, a bit of colorful language. But his colorful language was not really what he is was about. It was about this giant academic mind that really changed the way a lot of us thought about the law. And again, whether you agree with him, whether you disagreed with him, he had a gigantic legal effect and a cultural effect.

[18:15:15] HARLOW: And now, when you look at the very real potential of a tip of the balance of power in this court.

CEVALLOS: Absolutely. I mean, now it's no secret that as a Democratic president you can expect that President Obama will look to appoint maybe someone who will make this is more progressive court. It's hard to imagine anybody that wouldn't be somewhat more progressive than Justice Scalia. But again, I mean, for his contributions to the originalist view of the constitution, I mean, it's really his academic contributions are just to be remembered at this time. Really, unbelievable.

HARLOW: I do want to read the statement that we have from the chief justice. Look at the entire high court sitting there. Chief justice John Roberts issuing this statement. On behalf of the courtroom and retired justices, I'm saddened to report that our colleague justice Antonin Scalia has passed away. He was an extraordinary individual and jurist, admired and treasured business his colleagues. His passing is a great loss to the court and to the country he so loyally serve. We extend our deepest condolence to his wife Maureen and to his family.

David Gergen to you, and Danny please stay with me.

David Gergen to you, when you think about his legacy, the way that Jeffrey Toobin described it to me is giant. What comes to you mind as a former adviser to four presidents?

GERGEN: Well, I think he was the strongest intellectual appointment we have seen to the court in recent years. And he provided the intellectual fire power for so much of the court's rightward sing over the past decades. I think you would have to go through and enumerate. But you know, the pendulum moves back and forth. And you know, it's been said for years, going all the way back to frankly Roosevelt when he one of the tactic court that ultimately the Supreme Court follows the vote, follows the elections and the shape of that. And we have gone through a more conservative period with Reagan. And when Republicans basically had the upper hand, and pointing many of the current justices, five Republican justices in the court, four Democratic justices in the court. And you know, that the 5-4 fight has been ever present for.

So I think that his -- I think that rather than pointing out one particular court decision or another, I think it's the trend line of the law has moved in a much more conservative direction with Scalia there. And now there's a pushback that's been come in recent years as the Democrats has had a chance to put more people on the court and the court is more evenly divided. And the question now becomes, OK, what about the future. Is it going to continue in a conservative direction? Or given the fact that Democrats have won the popular vote in five out of six elections, if they can win again now, it's very likely they are going to have the majority on the court and a strong majority for some years to come if they win the White House.

I would be interested in Danny or Jeff Toobin if he's still with us, to hear -- to drill down a little bit on what does it actually mean if the court becomes more liberal, if there is an Obama appointment? Will there are going to be a liberal direction? What areas of the law will be most affected?

Clearly we're on the verge of the court reconsidering the death penalty. And there has been much thought that the court might strike down the death penalty in the next few years. Affirmative action are in play.

One other issue is I don't think Roe v. Wade is yet in play. But there are very sensitive issues about the future of the country that will be in play if President Obama or a Democratic president (INAUDIBLE) on the appointments.

HARLOW: Absolutely. There's no question about it.

David Gergen stay with me. I just got a statement in from former president George H. W. Bush, Bush 41. Let me read the statement to unfold.

The appointment of Antonin Scalia to the Supreme Court was one of Ronald Reagan's many enduring legacy to the United States. Both his admirers and his detractors agreed that Justice Scalia was one of the sharpest constitutional intellect to ever serve on the bench. I considered him a personal hero and Barbara and I were honored to call him a friend. Our hearts break today for our country, but especially for his wife Maureen and his nine children and extended family. His death is a great loss to all of us.

David Gergen, obviously he was appointed in '86 and he was on the court under former president George H. W. Bush. As he mentioned at the end of the statement, no politics here, just the man, the legacy, the father of nine, the grandfather, David Gergen, of 28.

[18:20:11] GERGEN: Unbelievable, isn't it? First of all, I think the George H. W. Bush statement is the most eloquent we have had. It really captured more of the spirit of the man. And I think it is very heartfelt. That has all the ring of someone who is bringing his own personal expression. This was not written by a speech writer and just handed to him. It was something I think he really felt, so.

And I think that captures the spirit of a lot of people who had who just thought the world of Scalia because they thought he was the champion and standing up against, and pushing the law back in a direction that they supported. I mean, Scalia's basic position as a conservative was what's called originalism. That is to go back to the founders and not look at the way the law -- because society has changed sense. To find out what the meaning of the constitution is. It is called original as go back to the original intent of the founders. And in the same way interpreting statutes, it was very much look at the text, look at the text very closely to figure out what it is.

There's an alternative view, which you know, Justice Breyer, for example, I think brilliantly represents and that is no -- the law evolves over time, you know, and that there are things that we would not have considered, the question of abortion, is a question was not considered by the founders. And you have to look at the spirit of the constitution and let it evolve. The constitution is a living document. It is not a dead document coming back from the past. And that has been the source of an enormous intellectual fight between conservatives and liberals about the direction of the court. And Scalia represented the principle player on the conservative side. But with his death, there's not just a giant has passed, but there is a giant hole. And I think the question becomes how are we going to go about filling the next space and determining the future of the court?

HARLOW: CNN's David Gergen. Mitch McConnell, the Senate majority leader just saying that he believes that the United States should wait until there is a new president to nominate a replacement for Scalia. We will see how that plays out.

Please stay with me, David Gergen. I want to bring in CNN senior political Manu Raju on Capitol Hill.

What do you make of what McConnell was just said?

MANU RAJU, CNN SENIOR POLITICAL REPORTER (over the phone): It really puts sort of a final say here on what Republicans will do. They are not going to take up a nominee, no matter what President Obama does, even if he does nominate someone to replace Justice Scalia. Almost certainly that nominee will not be -- not get a confirmation vote this year. Mitch McConnell the senator majority leader sets the schedule and makes the final decision on who can get a vote and what can be voted on on the Senate floor. And the Republicans have 54 seats. There are 46 Democratic seats. Even if the Democrats were to maneuver to try to get a vote somehow, they do not have enough seats to get -- overcome any filibuster which requires 60 votes to overcome in order to get someone on to the bench.

So it looks like the Republican opposition holds, it will not be a replacement, no matter what President Obama does this year, unless the president decides to initiate a recess appointment somehow. That's an avenue the White House proposes. But you know, this is really going to be a fight, not just in the presidential race. We're already seeing Marco Rubio and Ted Cruz saying that there should not be a nominee confirmed until the next president. But also in the Senate race, there are 24 Republican Senate seats up this year. There are 10 Democratic Senate seats up this year and a number of Republican seats are in blue states and purple states like Pennsylvania, Ohio, Wisconsin, Illinois, Florida, seats in New Hampshire, seats that can easily flip to the Democratic side. Meaning that this raises the stakes even further for the Senate race this year. But make no mistake, right now looks like no matter what the president does, Mitch McConnell, the Senate Republicans will not go forward with someone to replace Justice Scalia. They will leave it up to the voter to decide whether Republicans or Democrats have a say in who the next Supreme Court justice is -- Poppy.

HARLOW: And Manu - But Manu, the question becomes if McConnell does carry through with that and do that, won't we see the Democrats using that against the GOP in every single Senate race this year as you've just outlined how many of them are up?

RAJU: Absolutely. This will be a huge political issue. And Democrats in the Senate are not going to relent. But Patrick Leahy, the Senate you just heard, ranking member, the Vermont Democrat (INAUDIBLE) senator that issued a statement saying there is no excuse why the Senate cannot act. It's only February. We have an entire year, even there are only eight legislative days before the August recess. There is time after the August week recess. There's time in what is called a lame duck session of Congress after the elections. There's plenty of time according to Democrat to act.

So you're going to hear that argument being made. I'm sure you'll probably hear the White House make that argument too. And that is going to be part of the election. You will have debate going forward. Clearly, Democrats are going to make the case that if Republicans hold up a nominee for the Supreme Court, the Supreme Court will not be functioning at full force when clearly the Senate can act. So that is -- it's not an easy decision. It's not a decision without political risks. The Republicans not to move forward on the next Supreme Court justice spot.

HARLOW: Manu Raju, thank you very much, CNN senior political correspondent. Stay with us.

I do want to bring in our CNN political reporter Sara Murray. She is live in Greenville, South Carolina.

I mean, Sara, this comes, this tragic, this very sad news of the death of Justice Antonin Scalia comes hours before the GOP candidates take the stage. And as David Gergen said, every branch of government, judiciary, Congress of legislature, the executive at the White House is now at play in this election. This is high stakes. It is the highest stakes and this will no doubt be the first question in the debate tonight.

SARA MURRAY, CNN POLITICS REPORTER: Poppy, I think you're absolutely right. I think a lot of candidates who have not had to focus very much on the Supreme Court are now going to be questioned on what kind of justices they will appoint. How active they want the Supreme Court to be.

Now, of course, we've already seen Ted Cruz and Marco Rubio say they want to see this delay. They do not want another justice confirmed. But I think there are candidates like Donald Trump who are going to be see tonight final act about who he would want to see on the Supreme Court.

It does sort of change the tone a little bit, at least, for the outset of the debate because you're now looking at these candidates as a potential president and asking them, what kind of justice do you want? Who do you want shaping policy here in America?

And I was just talking to some folks from the Cruz campaign and they believe this is the kind of thing that could work in their benefit. They think Ted Cruz can come out on the debate stage tonight and say I have upheld conservative principles. And you already know what kind of justice I would nominate for this division. You know what a court would look like under me as president. And they believe that they could exploit that as a potential weakness for Donald Trump saying that he is sort of shifted around on these issues whereas Ted Cruz is the true conservative. And as we know, South Carolina is really shaping up to be a race between Ted Cruz and as well as Donald Trump. So this could be an area where we see start to see some differences between them on the debate stage tonight -- Poppy.

HARLOW: Absolutely. We will be watching. You'll be there live for us. Of course, we will have special coverage after the debate. This changes everything. No question.

Sara Murray, thank you very much.

I want to go to Dana Bash.

Dana, we have a new statement out from senator minority leader Harry Reid on this.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT (on the phone): That's right. You heard Manu reported just a few minutes ago the confirmation of what we were talking about earlier, that Republicans who run the Senate do not want to have any kind of confirmation for an Obama nominee to replace Antonin Scalia.

Well, Harry Reid, who is the top Democrat in the state, he just issued a blistering statement saying that the president should send the Senate a nominee right away because there are a lot of important issues pending before the Supreme Court. But then he goes on to say it would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill the seat would be a shameful abdication of one of the Senate's most essential constitutional responsibility. Very, very strong language there from the top Democrat in the Senate.

And probably not surprising, Poppy, because, you know, as much as Republican leaders are getting a lot of pressure from their rank and file and from the presidential candidates that they want to hold off and to wait until the presidential election takes place, Democrats, you know, they don't want to bank on the fact that they can win the White House, because this is a huge, potential huge shift in the balance ideological balance on the Supreme Court. So that's why you see that strong language there.

Now, in terms of the realistic possibility of that kind of push, having any kind of bearing, probably not. It is possible that the president would follow his advice and nominate somebody. But the Republicans have the votes in the Senate. And it is basically the Democrats and the Senate, their hands are tied to do anything about this, except to talk loudly and gin up their own base for the presidential election to remind them to as much as conservative they are not reminded that the next president, it is incredibly consequential for a whole host of reasons, one of which is that they get to nominate somebody on the Supreme Court and that will have lots of ramifications going forward -- Poppy.

[18:30:15] HARLOW: Let's remember, Dana Bash, that there will be two senators on that stage tonight in the GOP debate.

Let's pause for a moment as you look at live pictures of the U.S. Supreme Court, the American flag being lowered there to half-staff. It was lowered, now raised to half-staff in honor of the 30 years that justice Antonin Scalia served on the highest court in this country. Appointed, nominated and then appointed in 1986 under President Reagan, a father of nine, a grandfather of 28.

Jeffrey Toobin to you. When we look at this, his death comes one month before the court is scheduled to hear its biggest abortion case in years.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: And there are few subjects that have moved Justice Scalia to more outrage than the subject of abortion rights. He was not on the court in 1973 when Roe v. Wade was passed by the court 7-2. But in every abortion case since he has been on the court, over 30 years, he has voted to allow legislatures to restrict abortion rights. He has loudly and repeatedly asserted that Roe v. Wade was incorrectly decided in the first place. And several times the court has come very close to overturning Roe v. Wade at Justice Scalia's encouragement, but it has never quite not done that. In fact that is probably the biggest failure of Justice Scalia's career that he never managed to get Roe v. Wade overturned.

HARLOW: So now in a month as the high court is set to hear the case, Jeffrey Toobin, tell us a little bit about the case and what happens now with eight justices on the court. Because correct me if I'm wrong but there's no way you're going to get another justice in a month.

TOOBIN: Well, certainly not in a month. That's for sure. In 2010 there we the big Republican landslides in many states and one of the first things many of the states did was restrict abortion rights, in Mississippi, in Texas. And these cases challenging those restrictions have worked their way to the Supreme Court. And mostly they are about imposing requirements on abortion clinics that make it virtually impossible for the clinics to stay open, requirements that their doctors be certified in certain ways that they have admitting privileges at nearby hospitals, that they have certain equipment that most abortion clinics don't have. And the lower courts have mostly approved these restrictions as permissible health regulations. But there's a very strong claim by the challengers that this is simply a way of making abortions impossible to get. That's the case that's before the Supreme Court.

HARLOW: And the court will still hear the case?

TOOBIN: The court is going to hear exactly the same cases it was going to hear. The difference is if there are 4-4 resolutions --

HARLOW: Which is very likely if you look at the makeup of the court right now.

TOOBIN: Absolutely.

HARLOW: You really now have a split bench.

TOOBIN: Right. I mean, what makes justice Scalia's departure doubly significant is that he, himself, was an enormously important and influential figure. So his departure would be important under any circumstance.

But what makes it perhaps even more significant is the court splits almost all the time five Republican nominees to four Democratic nominees. This reduces the number of Republican in nominee to four. If President Obama were to get someone confirmed, it would be five Democrats. That would be a constitutional earthquake. And as we see from the Senate statement by Senator Mitch McConnell and other Republican Senators, they don't want to give President Obama that opportunity.

HARLOW: That's right. I mean, Mitch McConnell coming out and saying we should wait. Senator Harry Reid just coming out saying the president can and should send the Senate a nominee right away.

Danny Cevallos, when you think about the legacy - I mean, you were a law student, a young law student. He was sitting on the bench writing these opinions. He was in the majority in Bush versus Gore. What is the opinion that you think of when you think of Justice Scalia?

CEVALLOS: How could I possibly begin with any of them? I guess as a criminal defense attorney, I mean, he often upheld the constitution when it came to search and seizure issues. So I mean, I have a personal interest in that. But just culturally, I mean, his decisions have created, and I know

Jeff can speak to this too, and I have talked about this briefly. I mean, when you see him at his events, you see these law students who have a fervor for him that is just unparalleled with any other justice, maybe any other politician of our era. He was an academic giant. And in terms of -- these pending decisions that Jeff was just talking about, we should talk about too because, I mean, any votes that he has cast so far are now essentially void. So to the extent it was part of a dissenting opinion that may not matter. But to the extent that might have been part of a majority, those cases are now in play. So there are some very interesting questions and very interesting issues that may, until yesterday we thought were settled, now aren't so settled.

TOOBIN: Let me give you an example of one case in particular that I think is perhaps his most important majority opinion. 2008, the Heller case about gun rights.

HARLOW: Right.

TOOBIN: For 100 years the Supreme Court had said the second amendment did not grant individuals a right to keep and bear arms. It only related to the right of militias which no longer exist to be armed. In 2008 the Supreme Court changed 100 years of precedent and said individuals now have the right to bear arms. Even Barack Obama who is certainly not an ideological ally of Justice Scalia acknowledges that the second amendment does give individuals the right to bear arms. That his revolution in the understanding of what the second amendment means, that in itself is a huge, huge change that he's responsible for.

HARLOW: Especially today, in the political climate right now.

TOOBIN: That's right. And as much as President Obama has tried to impose some sort of gun safety and gun restrictions, he has acknowledged that the second amendment grants individuals a right to bear arms. That view was not widely held until Justice Scalia and his allies made it the law of the land on the Supreme Court.

HARLOW: All right. Stay with me, Jeffrey Toobin, Danny Cevallos. We have got also David Gergen with us, our political analyst. Manu Raju is also with us from the nation's capital.

I just want to reset. If you're joining us, we do have some breaking news into CNN to bring you some very sad breaking news on the death of U.S. Supreme Court justice Antonin Scalia. He died in his sleep of natural causes overnight while he was on a hunting trip in Texas. According to a government official, he went to bed last night. He was not feeling well. He told friends that. He went to bed. He did not get up for breakfast, we are told. This morning he was found unresponsive in his room at this ranch in Texas.

Just a short time ago Supreme Court chief justice John Roberts issued this statement on behalf of the court and retired justices, I'm saddened to report that our colleague, Justice Antonin Scalia, has passed away. He was an extraordinary individual and jurist admired and treasured by his colleagues. His passing is a great loss to the court and the country he so loyally served. We extend our deepest condolences to his family and his wife. Maureen.

The White House say President Obama was informed of Justice Scalia's passing and that president and the first lady extend their deepest condolences to his family. We know we will learn more from the president tonight. We'll bring you that tonight as soon as we have it as you look at live pictures here as night has fallen on the Supreme Court.

Justice Scalia was the first Italian-American to sit on the nation's highest court. He was sworn in on September 26, 1986. He had died now at the age of 79. His death sets up a major election year battle over his success or on the court.

David Gergen to you. We are just a few hours away from the beginning of the GOP debate. And when you look at who will carry on from Justice Scalia, the question looms large tonight, no question.

GERGEN: Absolutely. And what I think we're going to hear tonight is Ted Cruz go on the offensive over this. He is probably the most articulate person among the debaters about the court because he did clerk for chief justice Rehnquist. He also obviously was a student of the law.

I think he's going to use this opportunity to go after Donald Trump as being unreliable when it comes to the law. He will find -- Donald Trump just a few years ago seemed to be very much in favor of affirmative action and was in disagreement with Scalia. And Scalia will be held up as the role model now for conservatives. The iconic figure, the giant if you would. And you know, you're going to be tested as a Republican candidate about how loyal you are to the Scalia play. So I think that's going to enter in. I think Cruz will use it as an opportunity to make an attack. I imagine Marco Rubio will do the same thing.

But it only underscores how much fur is going to fly now over -- with his death and how important it's become in our politics almost instantaneously. I mean, Mitch McConnell issuing the statement as quickly as he did, which is extremely important because he is a majority leader there and he really will set the tone for what happens. And then Harry Reid coming back and punching back really hard. You are going to see a lot more of this and I think the Democrats are going to weigh in strongly about how could you possibly handicap a court and the Republicans will come back and say, the people should have a voice. The country should have a voice in the future direction of something so important as the Supreme Court.

[18:40:29] HARLOW: No question. David Gergen, stay with me.

Jeffrey Toobin, just to bring you in as I know you're working your sources and all that. But I do want to talk about some of the big case this year that are still to be heard, right? You the abortion case that we talked about, there's also a number of major cases set for the court to hear this year. Walk me through them. TOOBIN: Well, the restrictions on abortion, we have already talked

about. There is a case that the court has heard already and will be back before the court, very unusual to hear a second time, out of the University of Texas involving affirmative action in college admissions.

HARLOW: So what happens now that you have, for that case for example, you had nine justices hear it the first time, now you'll have eight.

TOOBIN: Right. One rule about the Supreme Court is that no decision is final until it is announced. So justice Scalia -- the court has been hearing cases since the first Monday in October. They have been taking votes privately, writings opinions privately. But none of the decisions are official until they're handed down. If he is part of 5- 4 majorities currently, those are now four justices on that side. So those cases become very different. The result may switch. The court is really very much designed to be nine justices. And when there is one missing, it really does create problems for the court.

HARLOW: Especially one who can tip the balance so much. I mean, this is the, correct me if I'm wrong, the longest serving justice on the court, correct?

TOOBIN: Yes, absolutely, 1986. Right.

HARLOW: And then you look at what he did for the court, what was it that stood out to you the most? I mean, obviously very, very, very opinionated, always lean one way. Also had this sort an off the bench very close friendship with his ideological sort of the opposite with Ruth Ginsburg.

TOOBIN: To give you an idea of how significant and a figure in the culture Justice Scalia has been, there was a play that ran in Washington for quite some time that was a one character play, justice Scalia talking. I mean, imagine that about a Supreme Court justice. There's an opera in the works about Justice Scalia and Justice Ginsburg's friendship. I mean, it is just, you know, that is the kind of influence he had.

But the thing is, it wasn't just popular culture. It was in the Juris prudence of the court. There is a concept called originalism which means the constitution should be interpreted as the framers of the constitution understood it in the late 18th century. And that is something he is deeply associated with, justice Thomas is too. But Justice Scalia was sort of the popularizer of it. And that means the justices in the 18th century weren't thinking about abortion rights. They weren't thinking about gay rights. So there is no recognition of those things in this view under the constitution.

Now, Justice Ginsburg and Scalia's opponents say, no, no, no, the constitution is a living document, it has to be interpreted in terms of current, what the world is like today. Justice Scalia defined that fight over 30 years. And you know, that's a huge, huge example of his influence.

HARLOW: Danny, what do we know about his relationship with the other justices? Obviously one would assume that this is a -- you have a very close bond even if you could not disagree more with the majority or dissenting opinion that your fellow justice rights.

CEVALLOS: And we all know the relationship we're all thinking of, at least people that are the fans of the court is the curious relationship between the friendship between him and justice Ruth Bader Ginsburg who ideologically you couldn't find two people who were more dissimilar. But by all accounts they were very good friends and very professional, got along professionally quite well although ideologically they probably rarely agreed if ever.

What is less known, this friendship with Ginsburg is, of course, very well known. What is less known is that he had a very difficult relationship with justice Sandra Day O'Connor who joined the court also a Reagan appointee five years before Justice Scalia. And in fact, that may have turned out to be even more significant than his friendship with justice Ginsburg because Justice O'Connor was the swing vote of her day. And Scalia early in his career especially wrote things about Justice O'Connor that her opinions shouldn't be taken seriously. That they were absurd. That they wore wrong. And he alienated Justice O'Connor for a long time. And you know, it's very hard to pinpoint any case or vote that might have gone the other way. But as interesting as his friendship with Justice Ginsburg was, his absence of a friendship, at least in the early days of his tenure with justice O'Connor might have been more significant.

[18:45:42] HARLOW: I want to take a moment to read. We have been getting a lot of statements in obviously from the White House, from sitting senators, from candidates for president. I want to read one statement that has certainly stood out to us this evening coming from former president George H. W. Bush, Bush 41.

Here is what he write. The appointment of Antonin Scalia to the U.S. Supreme Court was one of Ronald Reagan's many enduring legacies to the United States. Both his admirers and his detractors agreed that Justice Scalia was one of the sharpest constitutional intellect to ever serve on the bench. I considered him a personal hero. And Barbara and I were honored to call him a friend. Our hearts break today for this country but especially for his wife Maureen and his nine children and extended family. His death is a great loss to all of us.

David Gergen, are you with me?

GERGEN: Yes, I am.

HARLOW: David Gergen to you. Poignant and I mean, you were an adviser to four presidents. We have heard a number of statements out from some of the former presidents tonight already. What do you make of this statement?

GERGEN: I think that recalls George H. W. Bush, that he was such a decent man and really cares about people. I think it gave full expression to the best of George H. W. Bush. He was -- you know, he is an emotional man too. And I think he had enormous respect for Justice Scalia. I heard him talk about him in years past and very much in the same tone as that.

And you know, there's going to be a lot of respect. But I can't emphasize enough that I do think that there's going to be - you know, when the conservatives are talking this way about delaying things, I have been hearing having numerous messages on the internet saying, well, listen, you talk about the conservative will argue that people ought to have a choice in this. Well, they say, well, listen. The people had a choice and they chose President Obama to make these kind of decisions.

And there are going to be strong arguments each party. These are very heartfelt arguments over where we should be going. Because I think people have come to understand that in all of the dis-functionality in Washington, actually the Supreme Court makes decisions about how actually we live, and what's permitted and what's not permissible. It helps to shape our civil society. And that becomes enormously important to people. And that is why I think this is going to cut a lot deeper.

We often talk about political elections revolving around the court. I can't remember one in which the court would be so central as I think it's going to become in the weeks ahead. As I said we are going to hear the opening guns tonight but we're already starting to hear them, aren't we, on Capitol Hill.

HARLOW: Well, and I wonder, do you think, David Gergen, do you think that this become, this open seat now on the nation's highest court becomes the defining question of this election? Does this become a single voting issue for many Americans?

GERGEN: No. I do think it becomes elevated to that cluster of issues that are going to make a real difference. But getting this economy going, jobs, income and equality, international security, ISIS, those issues aren't going away. I think this now is injected in the middle of things. And for the next days it's certainly going to be hotly debated. But I think it will then become part of a mosaic. It's going to be very important. But people believe will now take this into account as they make a decision, going back to what Jeffrey was saying about abortion, for example.

The Democrats haven't -- I think this could be a critical issue for Democrats about saying, you know where do you want to go on this issue. If you got to elect us, if you want to protect us from the further restrictions. So it's definitely going to be cutting. I think it will be part of the central issues. I don't think it will be a defining issue.

HARLOW: David, stay with me.

Joining me now on the phone is Ed Whelan. He is a former clerk for Justice Antonin Scalia. He is currently president of the Ethics and Public policy center.

Ed, thank you so much for being with me and from all of us here at CNN. I'm so sorry for your loss, not only a friend and mentor but your former boss, someone very close to you. ED WHELAN, CLERKED FOR JUSTICE SCALIA (on the phone): Well, thank

you. My special thoughts and prayers for Mrs. Scalia and his family.

[18:50:00] HARLOW: What can you tell us about his family? I mean, we know him as the justice on the bench, the high court. We know him for his decisions. But his life is that also of a father of nine, a grandfather of 28, a loving husband. Tell us a little bit about him, the person.

WHELAN: Well, I think Justice Scalia had a wonderfully vivacious temperament, full of life, full of joy, one might say the Latin temperament that could have its ups and downs but deeply loved, his wife Maureen and his entire family. Very proud of all that his children accomplished, very, very loving husband and father.

HARLOW: What is it like to work for him?

WHELAN: It was - we all thought we had the toughest job on the court - among the clerks that we had to make sure we got it right, not just to figure out what our boss wanted. He was a very challenging, brilliant writer. It was a great joy to see how he would take what we though was very good draft and make it even better. So it was very much helped towards my thinking about the law and I'm very grateful for the experience.

HARLOW: I want to bring in also Jeffrey Toobin, our senior legal analyst, author of "the nine" on the Supreme Court." He has a question for you.

TOOBIN: Ed, what would you say are the most important to Justice Scalia's opinion? I talked about the Heller opinion about the second amendment. What else would you put in that category?

WHELAN: Well, Morrison vs (INAUDIBLE) has his assent back in I believe in 1988 on the independent counsel act, ultimately vindicated by history, as folks across the political spectrum recognized that the independent counsel statute was detracted seriously from core executive power. That is something that Democrats learned the hard way, I think, during the Clinton years. But it was just a very deep, rich opinion talking about separation of powers and executive authority, some wonderful, wonderful, memorable lines in that opinion. I think they made his mark very early with that. It was a solo dissent to majority opinion by chief justice Rehnquist. So I think it showed a remarkable courage and clarity. That one very much stands out and I expect many other of Justice Scalia's dissent will be vindicated over time.

HARLOW: You say that he made you a better writer and he is known for his skill with the pen, if you will. Is there one line, one passage that he wrote that you think of most as everyone mourns his passing?

WHELAN: Well, in the more (INAUDIBLE) something said something to be effected. You know, usually, wolves come disguised as sheep but this wolf come as wolf. Another words, the (INAUDIBLE) were still obvious that everyone should be aware of them. There's so many great lines. You know, I think for a pure joy of

reader ship, you can pick up almost any Scalia opinion and find something memorable. So I really can't pick out, you know, one among the dozens and dozens. I'm still frankly dealing with the shocking grief. So pardon me for not having more information at my fingertips.

HARLOW: Of course, we completely understand. And we are looking at pictures of him there from 1986, the fall of 1986 when he was sworn in as a Supreme Court justice. There you see former president Ronald Reagan.

Ed, our condolences for your loss. Thank you very much for sharing a little bit more about your former mentor and boss and friend with all of us tonight.

WHELAN: Thank you.

HARLOW: Of course.

David Gergen, your final thoughts as we look at this moment in history as we sit here tonight marking it another moment in history.

GERGEN: First of all, I think we need to think about the man, himself, and what is meant to the country. Americans are very divided, of course, about the court and about Justice Scalia. But I think out of anything like this when he dies and he has left behind a wife and nine children and a remarkable record of service, whether you agree or disagree. First of all, our hearts go out for the -- to the family. And I think we all need to pay our respects to a champion of the law and even if we may disagree with how we interpret the law.

But then, too, we know we are now already in the beginning of a huge fight. That is going to take place across the country over the next eight or nine months as we go into the election.

HARLOW: Right.

[18:55:00] GERGEN: There's going to be lots and lots of lots conversation about this. I think it will be one of the critical issues in the election. And what we know, more than anything else is, there's a rare moment when a national election -- we will have in play, the future of the White House, the future of the Congress and the future Supreme Court. All are in play as we go through this election cycle. The election becomes hugely pivotal. And we are going to have a very tight in the end. We can somehow find that we are still on the same country. We still belong to the same country. And that's what Antonin Scalia believed deeply down, just as these other justices do.

They disagree with each other. They write making opinions. But as we've learned tonight, he had a real friendship with Ruth Bader Ginsburg. They had New Year's Eve dinners together regularly, the two families. And so, there is much of binds us together we need to remember on this evening as well.

HARLOW: I think that's a very good point, David Gergen. And as we go to break, let's also remember the fact that back in 1986,

this is a justice who was unanimously confirmed by the Senate, 98-0.

David Gergen, thank you very much.

I do want to let you know before we go to break later this week, CNN will hosts two Republican presidential town hall events in South Carolina. All six Republican candidates will participate. Marco Rubio, Ted Cruz, Ben Carson will appear on Wednesday night followed by Donald Trump, Jeb Bush and John Kasich on Thursday night. Those events will both be hosted by our very own Anderson Cooper at 8:00 p.m. eastern obviously in South Carolina, ahead of the primary there, give voters in South Carolina the opportunity to ask their questions directly to the candidates. And, of course, the passing of Supreme Court justice Antonin Scalia will be addressed as well.

We're going to take a quick break. Much more on our breaking news when we return.

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