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Supreme Court Justice Antonin Scalia Dead at Age 79; Obama To Comment on Scalia's Death Soon; Bill Clinton Reacts to Scalia's Death. Aired 8-9p ET
Aired February 13, 2016 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[19:59:55] POPPY HARLOW, CNN ANCHOR: All right. Top of the hour 8:00 p.m. Eastern. We do begin with breaking news. Very sad news to bring you this evening. The leading conservative voice on the United States Supreme Court is now silent, has passed away. Justice Antonin Scalia dying at the age of 79. He passed away in his sleep of natural causes during a hunting trip at a ranch in Texas. He was appointed by President Ronald Reagan back in 1986. He was the first Italian- American to serve on the nation's highest court. An interesting fact, he was confirmed unanimously by the Senate 98-0. This evening as darkness fell, the flag outside of the U.S. Supreme Court was lowered and then raised the half-staff in honor of Justice Scalia.
Earlier, Chief Justice John Roberts issued a statement calling Scalia, quote, "An extraordinary individual and jurist, admired and treasured by his colleagues." The White House this evening saying that President Obama was informed and that the President and First Lady extend their deepest condolences to Justice Scalia's family. Sources tells CNN, the President will indeed nominate someone to succeed Scalia on the high court, that coming directly from our Jake Tapper. Again, the President will nominate someone to take the place of Antonin Scalia if confirmed by the Senate.
CNN Chief Washington Correspondent Joe Johns has more on the life and legacy of Justice Scalia.
(BEGIN VIDEOTAPE)
ANTONIN SCALIA, U.S. SUPREME COURT JUSTICE: I Antonin Scalia do solemnly swear.
JOE JOHNS, CNN 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.
EDWARD LAZARUS, AUTHOR, "CLOSED CHAMBERS": Justice Scalia has an irrepressibly pugnacious personality and even in his early years of the court, that came out both in oral argument where he was the most aggressive questioner and behind the scenes where the memos that he wrote were called ninograms inside the court had a real galvanizing effect on the debate among the justices.
JOHNS: The jaunty jurist was able to light up or ignite, a room with his often brash demeanor and wicked sense of humor. Grounded, say many colleagues, in a profound respect for American law and its constitutional traditions.
JOAN BISKUPIC, SCALIA BIOGRAPHER: Feisty, he can be belligerent, he can be, he's obviously very candid about how he feels about things. Loves to call it as he sees it. Completely not pc. In fact, prides himself in not being pc on the bench, in court.
SCALIA: I'm Italian from Queens. This is the top of the hill.
JOHNS: A sharp mind combine with a sharp pen allowed Scalia to make his point both to the pleasure and the disappointment of his colleagues and the public.
PAUL CLEMENT, FORMER SCALIA LAW CLERK: He's very good, especially with audiences that are not predisposed to like him. I think he is incredibly disarming and charming in kind of -- charming in his own way.
JOHNS: Antonin Gregory Scalia was raised in the Amherst neighborhood of New York City, the only child of a Sicilian born college professor and a school teacher mother, they instilled in the precautious 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 Fifth 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 helped liven the public face of the high court.
CLEMENT: Some of the other justices, including the justices who were already on the court and had been on the court for a while, were kind of, well, you know, if the new guy gets to ask all of these questions, I'm going to sort of step up and ask some questions, too.
JOHNS: On abortion, the death penalty, affirmative action, homosexual right, Scalia clashed early and often with more moderate or left- leaning bench mates.
BISKUPIC: At one extreme he would alienate some of his colleagues. If he was trying to get anybody to sign on opinion it was harder when he would use more combative language. But, you know, as much as they would say, you know, I'd like to strangle Nino, he was still theirs in many ways.
JOHNS: In those dissents hoped him hone a creative some said often cruel streak in his writings becoming a master stylist. He once referred to the junior varsity Congress. He quoted, "Cole Porter, 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 tribute 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 call it dismissive in nature. And this on the war on terror.
[20:05:07] SCALIA: War is war and it has never been the case that when you capture a combatant you have to give him a jury trial in your civil courts. It's a crazy idea to me.
To thine own self be true.
JOHNS: Justice Scalia a man both respected and dismissed, feared and celebrated, combining equal amounts of personal levity and judicial heft.
BISKUPIC: Be remembered in many ways, certainly as this larger than life figure, larger than bench figure, someone who embraced both the law and a life beyond the court.
LEE LIBERMAN OTIS, FORMER SCALIA LAW CLERK: He will go down as one of the great justices in the history of the Supreme Court. I think that his -- 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 know longer enjoy it, I am out of there.
(END VIDEOTAPE)
HARLOW: And we know he enjoyed it all the way through. Known by many for his sense of humor. Justice Antonin Scalia, dead at the age of 79. His death also sets off a titanic political battle in the middle of an already intense presidential race. It has triggered a debate about whether President Obama should nominate a replacement. We now know that he will indeed do that. Senate Majority Leader Mitch McConnell saying in a statement tonight the American people should have a voice in the next selection of their Supreme Court justice.
Therefore this vacancy should not be filled until we have a new president. Also this from Senate Minority Leader Democrat Harry Reid saying, there was no doubt Justice Antonin Scalia was a brilliant mind. We had our differences and I disagreed with many of his opinions, but he was a dedicated jurist and public servant. I offer my condolences to his family. The President can't and should send the Senate a nominee right away.
Let's bring in our chief political correspondent Dana Bash. Dana, that's exactly what the President will do. We've learned just in the last half hour through our Jake Tapper's reporting, he will indeed nominate a justice to replace Scalia. DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: That's right. And as
we were talking about last hour, that is not surprising in the least, since he clearly feels that it is his constitutional duty to do so. That he is the President of the United States. It is his job to nominate somebody. He still will be technically the president of the United States for the next 11 months, which is a very, very long time. Yes, we are in an election year, but we are barely into this election year of 2016. So you have Republicans coming back, not just Mitch McConnell who you just mentioned, but the Republican chairman of the Senate Judiciary Committee saying that he believes that it is standard practice to not deal with such issues in an election year.
Of course, there are lots of people who are saying, well, this is a special case, not just because we're the beginning of 2016, but because this isn't a retirement. This is something that was unexpected. This is basically an emergency, if you will. So this is going to be debated on and on. And I think we cannot lose sight of the fact that for both Republicans and Democrats in this incredibly hot political season, both have political benefits for making these cases. And for Republicans in particular, not only do they not want the President to be able to replace the man who has been their -- basically their idol, their constitutional and judicial idol on the Supreme Court, Antonin Scalia, but also to have the specter of the potential of a Republican, if a Republican wins, to be able to nominate somebody, that is galvanizing for the conservative base. That is so huge for them. And we can't sort of leave that alone. That's a big political factor here. And same will go for Democrats if Republicans are successful. Before I get back to though Poppy, push it back, I want to actually read one thing that we just got in moments ago from the House Speaker Paul Ryan.
HARLOW: Right, yes.
BASH: Because this does underscore the kind of respect that Antonin Scalia has had across the board with conservatives. Here's what he said. He said, "Justice Scalia did more to advance originalism and judicial restraint than anyone in our time and it all started with just two words, I dissent. The passing of this brilliant jurist is a great loss, but his writings with their plain language and constitutional moorings will guide generations to come."
Of course the House Speaker on the politics doesn't really have very much to do with this because this is a Senate responsibility. But Paul Ryan, as kind of the next generation of Republican leaders, talking about just how admired someone like Antonin Scalia was.
HARLOW: Absolutely. Dana Bash, stay with me. I do have some breaking news into it tonight. We have just learned that President Obama -- President Obama will deliver a statement on the passing of Supreme Court justice Antonin Scalia. As you look at live pictures of the White House, we will hear from President Obama in just about 20 minutes time, at 8:30 p.m. Eastern Time the President will address this from the White House.
Michelle Kosinski, White House correspondent with us from Washington. What else do we know, Michelle? [20:10:36] MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Hi,
Poppy. Well, so far the White House has put out just a limited statement saying that the President and First Lady extend their deepest condolences. And we expect to hear more later. Now we now that he will give a statement in person and the press briefing area where he is travelling in California. He'll make a statement. We're not sure how long it will be. But, you know, will he make mention of the fact that he does intend to nominate someone in the time remaining as president? We'll see. But I think it's no surprise that he wants to do that. I mean, when you look at the issues and some of his legacy issues that are before the court and will be before the court, when you look at what a new nominee would mean to his legacy just on the face of that.
So, we'll wait and see how much detail he gives on what the next steps are from the White House, what the President intends to do next. He may not take questions, but you know, we'll see. We're sure that people there will have plenty of questions to try to get a little more information out of the White House tonight. Because already, even without a statement from the White House at this point giving much detail, you can see the back and forth already starting. So whatever the President says tonight, that's going to be a sort of jumping off point for, you know, how soon, what are the next steps, when is he going to nominate someone. As well as the names that are going to be coming out of who these potential nominees could be -- Poppy.
HARLOW: Absolutely right. Michelle Kosinski, stay with me from Washington tonight.
Dana Bash, back to you. Chief political correspondent. Look, the President is making this announcement before a lengthy sort of statement comes out from the White House. It's now clear that he will nominate another justice. Also, he's going to make these remarks at 8:30 Eastern Time before the GOP debate begins tonight.
BASH: That's right. It's hard to imagine that that is an accident. He wants to get his perspective out there, to kind of put his political and presidential stamp on this before the people who want his job on the Republican side start to debate. So that's an excellent point, Poppy, that he's not even here, he's in California at Rancho Mirage and he wants to make a point to get out there. And, you know, I'm guessing what he's going to say is, you know, something along the lines of what his democratic counterparts in the Senate have been saying. That they believe it is his responsibility, it is his constitutional duty to nominate somebody and that he hopes that Republicans will change their minds.
HARLOW: All right. Dana, stay with me. Michelle Kosinski as well in Washington. We're going to get a quick break in. We'll be back with more of this breaking news. And the death of Justice Antonin Scalia and news that President Obama will address the nation on this tonight in just a matter of about 20 minutes. We'll be right back.
(COMMERCIAL BREAK)
[20:17:03] HARLOW: All right. Breaking news here on CNN. We're getting more and more reaction now to the death of United States Supreme Court Justice Antonin Scalia. As you look at live pictures of the White House, we are waiting to hear from President Obama. He will be speaking at 8:30 p.m. Eastern Time from California. We'll bring you that as soon as it begins. Justice Scalia has died at the age of 79. He was found dead this morning at his hotel room in Texas. He went to bed last night, telling his friends that he was not feeling well. He did not come to breakfast this morning. He has died of natural causes.
We are told he is remembered for his 30 years of service on the high court, remembered for his sense of humor, remembered for his wit and his skill with the pen. Whether you agreed with him ideologically or not, this is a giant on the court who has now passed. A short time ago, former President George W. Bush issued this statement. "Laura and I mourn the death of a brilliant jurist and important American Supreme Court Justice Antonin Scalia. He was a towering figure and important judge in our nation's highest court. He brought intellect, good judgment and wit to the bench. And he will be missed by his colleagues and our country. Laura and I send our heartfelt sympathies and condolences to his wife Maureen, their nine children and the entire Scalia family."
President Obama as I said is expected to speak in just a few moments from California. We have our entire team here weighing in. Senior legal analyst Jeffrey Toobin joins me. Also CNN legal analyst Paul Callan, chief political analyst Gloria Borger.
Look, we have to remember the man, the father, nine children, 28 grandchildren. Whether you agreed with him or not, a lot of people liked him as a man and loved the time they spent with him.
Gloria Borger, to you though. On the politics of it, the President comes out, he speaks tonight before the GOP debate. Whoever the next president is will have an overwhelming amount of influence on who the next justice is. But the fact as David Gergen put it, you have all three branches of government now at play. Who's the next president, who leads in Congress and who's the next appointee to the Supreme Court?
GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: And this president is going to name somebody to be the nominee, his nominee to the Supreme Court. And I think we can't overstate the seismic importance of that and the political fight that will ensue. And I think the President has a very interesting decision to make right now. And I think it's a question of does he -- you know, this is a president who's kind of been feeling his oats these days and has gone with executive actions on immigration and everything else. Does he go to the left and nominate somebody that the Republicans would clearly not support? Does he go for somebody more moderate so that he perhaps could get Republicans support there?
And I think one thing we really haven't talked about and I'd like to ask you guys about is, the importance of the nominee, him or herself. You can't underestimate the sort of importance of the life story and the context that a nominee provides. Sonia Sotomayor, such a great life story. I mean, Mario Cuomo said that he would kick your you know what if you didn't support Scalia, because Scalia was a Catholic. And that's from a liberal democrat, I will recall. So, you know, the question is, what is the importance of the nominee himself to the entire process?
PAUL CALLAN, CNN LEGAL ANALYST: You know, Scalia is a great example of it. Because I was looking back on his confirmation. He was confirmed 98 to zero.
BORGER: Different times.
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Different times.
BORGER: Different times. Yes.
CALLAN: But in many respects because it was a different Congress and different times but his life story played such a big part of it.
HARLOW: First Italian-American.
CALLAN: President Obama has the perfect nominee waiting for him.
BORGER: Right.
CALLAN: It means, there is someone there.
HARLOW: Tell us about him.
BORGER: With a life story. Right.
TOOBIN: Sri Srinivasan, someone whose name is probably unfamiliar to most people. He was confirmed for the D.C. Circuit which is the second most important court in the country, 97 to nothing in 2013.
HARLOW: Not long ago.
TOOBIN: Essentially every Republican voted for him. He has an extraordinary life story. He grew up in Kansas. He was an extremely accomplished basketball player where he played with Danny Manning, who basketball fans will remember was one of the great college basketball players of the 1980s and '90s. He went to Stanford. He went to Stanford Law School. He was with the solicitor general's office. He was at a private law firm. He combines the, you know, moderate political appeal that could get every Republican with an extraordinary life story of coming from a family of Indian-American immigrants. Probably wouldn't make any difference today given the Republican unified opposition. But it could embarrass a lot of Republicans who are -- especially those who are running for reelection who voters might say, why don't you give this guy a vote?
[20:22:15] HARLOW: Right. I just want to take your take, I'm just getting this statement in from former Secretary of State presidential nominee Hillary Clinton. Hillary Clinton just issuing a statement here, let me read it, on the passing of Antonin Scalia. My thoughts and prayers are with the family and friends of Justice Scalia as they mourn his sudden passing. I did not hold Justice Scalia's views, but he was a dedicated public servant who brought energy and passion to the bench. She goes on to say, "The Republicans and the Senate and on the campaign trail who are calling for Justice Scalia's seat to remain vacant dishonor our constitution. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reason."
Just coming from a former senator. Gloria Borger, the use of those words, very deliberate wording here.
BORGER: Yes.
HARLOW: A dishonor to our constitution to leave the sit vacant.
BORGER: Well, and the interesting thing to me about Mitch McConnell, the leader of the Republicans in the Senate, saying, you know, we're not going to bring this up. He's a real institutionalist. So, he clearly chose the path, the political path here rather than the institutional path to me. I mean, Hillary Clinton is making a constitutional point here. And I think if this were another time, maybe Mitch McConnell might agree with her. But it's not that time. You are in the heat of this political season. You have major political candidates out here. We'll hear from them tonight, the Republicans, saying hold off. But President Obama has 11 months left in office.
HARLOW: Right.
BORGER: That's a long time.
TOOBIN: It's not --
HARLOW: How long -- just the history of it -- just how long has a seat remained open?
TOOBIN: You know, I don't know what the record is.
HARLOW: Yes.
TOOBIN: But this would be close --
HARLOW: Yes.
TOOBIN: -- to the record. And remember, it's not just 11 months we're talking about. Because if the Senate doesn't vote on this nominee, the new nominee, would -- the new president would have to pick him or her maybe in January, maybe in February. Maybe there would be hearings in April or May or June. So you're not really talking about an 11-month delay. You're talking about well into a second year of delay.
HARLOW: Uh-hm.
TOOBIN: And that's when it really starts to be difficult for the Supreme Court to function.
CALLAN: You also have a court that's almost evenly split ideologically -- HARLOW: Yes.
CALLAN: -- which means you have stalemate. The one thing is, he had a court, he had an overwhelming majority one way or the other.
TOOBIN: Well, and this is yet another reason why the Republicans will not have a vote, because there are now four Republican nominees on the court. Chief Justice Roberts, Clarence Thomas, Justice Scalia, Justice Alito, and Anthony Kennedy who was usually on the conservative majority and four Democrats.
HARLOW: Right.
TOOBIN: So if Obama got to put someone on the Supreme Court, that would mean five Democrats, which would be a constitutional earthquake.
BORGER: And this is just where Mitch McConnell did not --
HARLOW: Want to be.
BORGER: -- want to be. He wanted to become a leader who was not obstructionist. Who could prove Republicans --
HARLOW: I've got to get a break in. Stay with me. Gloria, Paul, Jeffrey, thank you. We'll going to get a quick break and we'll be right back. We're waiting for President Obama to speak. We'll bring that to you live. Stay with me.
(COMMERCIAL BREAK)
[20:28:53] HARLOW: All right. We're continuing to follow the breaking news here on CNN. You're looking at the podium where President Obama will address the nation shortly. He is expected to speak about the passing of Supreme Court justice Antonin Scalia. At any moment, we will bring you that live as soon as it happens. As we wait, let's bring in our panel.
We're back with Chief Political Correspondent Dana Bash, CNN White House Correspondent Michelle Kosinski, our senior legal analyst Jeffrey Toobin, CNN legal analyst Paul Callan and chief political analyst Gloria Borger.
Dana Bash, let me begin with you. What do you make of the timing here, the fact that we're hearing from the President just before the GOP debate tonight and just as our Jake Tapper has reported, he does say he intends to nominate a justice to replace, if confirm through the Senate, Scalia?
BASH: Well, it's not surprising. I'm not entirely sure that it is because he wants to get it out before the Republicans debate, but it certainly doesn't hurt. And look, he understands -- the White House understands, they've been doing this kind of things for seven years now. You don't want to leave too much of a vacuum for too long when it comes to information, when it comes to messaging. Even though we have already heard from his fellow Democrats on Capitol Hill what they expect. That was what was a kind of a foreshadowing of what we now know from Jake Tapper, that the President does intend to nominate somebody.
HARLOW: Right.
BASH: So look, he wants to put his stamp on this. He is taking a break from, you know, I'm guessing he's out there playing golf. In fact, it's good to get away from the cold. And I also -- it wouldn't be surprised if he mentioned that it's President's weekend and it is his, you know, constitutional duty and obligation to nominate somebody no matter where we are in the calendar and especially where we are in an election year.
HARLOW: Michelle, to you, I mean, you cover the White House. Anything you've heard from the President's team about what we can expect to hear from him in just a few moments.
KOSINSKI: Well, because we are going to hear from him tonight, they haven't given any of those details ahead of time. I mean, they're going to let him speak for himself. I mean, we know what to expect. We know that he will address the issue of a nominee. But again, this is, look, this is not a surprise that he's choosing to do this even though this seems to be igniting the firestorm. Can you imagine if President Obama said, I'm going to let this ride for the next year and not nominate someone to be appointed?
HARLOW: Right.
KOSINSKI: But they know they've got this fight on their hands. I mean, even over the last year, the things the White House has said regarding the difficulty they've had getting any nominee confirmed in this Senate, I mean, they've really faced an uphill battle with this. Some nominees waiting hundreds of days.
HARLOW: Right,
KOSINSKI: The White house putting out multiple statements, really criticizing Senate Republicans for holding up nominations that -- in the White House's words, helped to run the country and are vital for National Security and things like that. So you know, the fight that's going to ensue here is going to be one that -- you know, it's funny too. I should say that we've heard the President deliver multiple statements over the past few weeks on the state of politics in America, how partisan it is, how rancorous.
HARLOW: Right.
KOSINSKI: He thinks it's gotten worse. Well, no, once we have this situation, potentially the President nominating someone and the Senate just not wanting to take it up for nearly an entire year. What is that going to do to the state of things in this country as it stands? I mean, I think some might say, it couldn't get any worse, it couldn't get any more divided. But this is a question of, you know, on the highest court having a vacancy potentially for that long which such cases there, you can understand each side why they would want to go for this or hold it up. But it's a terrible thing for our country if this is going to happen like this and be such a battle. HARLOW: And this Jeffrey Toobin coming after the passing of a justice
who, no question, divided many American people in terms of his ideology but was also confirmed unanimously back in '86 just showing how different times were then.
[20:33:07] TOOBIN: How different time where he was confirmed unanimously. Ruth Bader Ginsburg who was just named to the court in 1993, you know, just a few years later, also confirmed unanimously with more than 90 votes. You know, a known liberal, a former ACLU official. Justice Scalia, a well-known conservative. But in those days the idea was, well, elections have consequences and presidents more or less get to pick ethical, honest persons of their own choosing. Those days are gone. The Supreme Court is viewed, correctly I think, as the final battleground of American politics. And the Republicans will be damned if they are going to hand a fifth vote on this court to Barack Obama, which raises the question which Gloria just raised off camera, which is who would take this nomination to be a batting practice for the Republicans?
BORGER: Let me just say, so, I just got an e-mail from a Republican pollster who I think is watching us. And he said to me, who would take this, willingly want to be in this lion's den? And you know, Poppy you rightly said, anyone would.
HARLOW: Yes.
BORGER: Well, I think it's a question, because you know if you're nominated by President Obama, chances are it's not going to go anywhere. Then what does that do to you down the road? Should Democrat win? I mean, there are all kinds of calculations that --
HARLOW: Yes.
BORGER: -- will be going on here right now if this person does get the call from the President.
CALLAN: You know the Republicans will be tearing a nominee apart throughout the entire end of the term.
TOOBIN: And they always tear apart nominees.
CALLAN: But they'll be much more vocal about it because they'll have to defend their position in a presidential election.
TOOBIN: You have the light at the end of the tunnel if you're an ordinary nominee. Which is, OK, they'll beat me up for six months. But then, I'll be a Supreme Court Justice for the next 30 years. This nominee certainly doesn't have that likely option.
HARLOW: Right. All right. We're going to take a quick break. Stay with us, all of you. We're going to talk next about who that nominee may be. Jeffrey Toobin thinks he has a very good idea. By the way, this is someone who just in 2013 was confirmed unanimously. So, a lot of politics about how do you confirm someone unanimously and then fight over it for 11 months if that is the person who is proposed by the President. We're waiting for the President to speak live from California, quick break, we'll be right back.
(COMMERCIAL BREAK)
[20:39:24] HARLOW: All right. As we wait for President Obama to address the nation on the passing of Supreme Court Justice Antonin Scalia, I do want you to listen to former President Bill Clinton. He just reacted to the news.
(BEGIN VIDEO CLIP)
FMR. PRES. BILL CLINTON (D), UNITED STATES: First of all, my prayers are with his family and with his friends. Justice Scalia would find it hard to believe that I would say this. But I always kind of liked Justice Scalia because he never pretended to believe something he didn't, he never pretended to be anything he wasn't. And I think that's one reason by all accounts he became good friends with Justice Ginsburg who I appointed to the Supreme Court. They disagreed on nearly everything but they treated each other with respect and they sat down and had honest arguments.
And that's all you can ask in America. Nobody is right all the time. And tonight all of us, whether we agreed or disagreed with him, should be praying for his family and thankful for the fact that he was able to live a life where he could say what he thought and do what he thought was right and do it with a smile on his face and reach out and make friends with Ruth Bader Ginsburg who did the same exact thing and came to different conclusions. That's what makes democracy work and I'm grateful.
(END VIDEO CLIP)
HARLOW: Now, you hear the former President Bill Clinton weighing in on the news. We are back with Chief Political Correspondent Dana Bash, CNN White House Correspondent Michelle Kosinski. Our senior legal analyst Jeffrey Toobin, CNN legal analyst Paul Callan, chief political analyst Gloria Borger. Jeffrey Toobin, to you, let's talk about who the President might nominate.
TOOBIN: I think there's one obvious choice. And that's Sri Srinivasan who is a judge on the D.C. Circuit, 48-years-old, confirmed unanimously just in 2013. So that would present a --
HARLOW: A similar political climate.
TOOBIN: A similar political climate, but not nearly as significant as a Supreme Court appointment. Another route the President might go is an older route which is naming a United States Senator, Sheldon Whitehouse of Rhode Island, Amy Klobuchar of Minnesota. Might put a little different kind of pressure on Republican colleagues. It used to be fairly common to nominate United States senators to the Supreme Court. Hasn't been since the Truman administration, but there's a lot of history there.
HARLOW: Yes. Where the person and their story --
BORGER: The person will matter. If the President were to nominate a senator, I still think Republicans would balk, but it would make them think maybe for five minutes.
TOOBIN: Yeah.
BORGER: Before the, you know, before they did. Aren't there any other nominees that have been vetted, though, from last time around?
TOOBIN: Well, you know, Merrick Garland who is on the D.C. Circuit. But presidents also like younger nominees now. And Merrick Garland, he is into his 60s.
BORGER: Right,
TOOBIN: There is a whole crop now of Obama nominees to the circuit courts who have now been serving for some time. Jane Kelly who is from Iowa.
BORGER: Right.
TOOBIN: Which would, you know, Chuck Grassley's home state. Chuck Grassley was a big supporter of hers. There are several judges out in California who have -- on the Ninth Circuit. But it's hard to think there is anyone who would even get a vote in the current United States Senate.
CALLAN: There's always Chris Christie and Rand Paul. No, he's not a lawyer, I'm sorry.
TOOBIN: You don't have to be a lawyer.
CALLAN: That's right.
TOOBIN: You don't.
CALLAN: -- to be on the Supreme Court you don't. That's an interesting point. Yes. So --
HARLOW: All right. Guys, I do want to go to the phone, let me jump in there for a minute because we do have Senator Jeff Sessions on the phone with me, a Republican from Alabama. Senator, can you hear me?
SEN. JEFF SESSIONS (R), ALABAMA (on the phone): I do hear you.
HARLOW: Thank you very much for joining me. I wish it were under better circumstances. The news of the death of Justice Antonin Scalia, first your reaction, sir?
SESSIONS: He was a remarkable man. He was such a delight to be with, energizes any group he's a part of. But he's historic. He was one of the great justices of all times in my opinion. And he led intellectually a return to the idea that judges follow law, they serve under the law and under the constitution and their duty is to settle disputes and render decisions and not to impose their views and not to allow their ideology to impact their decision making.
[20:44:08] HARLOW: We have learned tonight from our Jake Tapper's reporting, Senator, that President Obama does intend to nominate another justice to replace Justice Scalia. We don't know when that nomination should may come. But again President Obama does intend to make that nomination. What are your thoughts?
SESSIONS: I had not heard that, but I think it's too late to nominate someone now. Few nominees that are already out there for the circuit are benches will probably get through now. And the situation is so intense with the divided court, I think the proper thing to do is allow the presidential election to go forward and the next president nominate the next member of the court, which could tilt the court one way or the other.
HARLOW: But Senator, let me ask you this, I mean, there's also the issue of the constitutional duty of a president, right, and of a Senate to vote on a nominee. And you've got 11 months before the, you know, the next president takes over, then you've got however many months it would take to put whoever they confirm up for a vote and to have a vote take place in the Senate. Hillary Clinton said just in her statement tonight, let me read you part of it. "The Republicans and the Senate and our campaign trail who are calling for Justice Scalia's seat to remain vacant, quote, dishonor our constitution." Your reaction?
SESSIONS: Well, the constitution did the Senate -- to confirm or not confirm on justice to the Supreme Court. And I think that Senator McConnell just stated plain fact, President Obama's gotten two activist judge appointments to the court capable intelligent justices but share deeply his philosophy. And I think that the Senate is not likely to move on another nominee at this late date.
HARLOW: All right. Senator, I'm just going to jump in. Thank you. Let's listen in to President Obama live from Rancho Mirage, California.
PRES. BARACK OBAMA (D), UNITED STATES: For almost 30 years, Justice Antonin Nino Scalia was a larger than life presence on the bench, a brilliant legal mind with an energetic style, an incisive wit and colorful opinions. He influenced a generation of judges, lawyers and students and profoundly shaped the legal landscape. He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy, the rule of law.
Tonight we honor his extraordinary service to our nation and remember one of the towering legal figures of our time. Antonin Scalia was born in Trenton, New Jersey to an Italian immigrant family. After graduating from Georgetown University and Harvard Law School, he worked at a law firm and taught law before entering a life of public service. He rose to the assistant attorney general to the office of legal counsel to the judge on the D.C. Circuit Court to associate justice of the Supreme Court. A devout catholic, he was a proud father of nine children and grandfather to many loving grandchildren.
Justice Scalia was both an avid hunter and an opera lover, a passion for music that he shared with his dear colleague and friend Justice Ruth Bader Ginsburg. Michelle and I were proud to welcome him to the White House including in 2012 for a state dinner for Prime Minister David Cameron. And tonight we join his fellow justices in mourning this remarkable man. Obviously today is a time to remember Justice Scalia's legacy. I plan to fulfill my 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. They're bigger than any one party. They are about our democracy. They're about the institution to which Justice Scalia dedicated his professional liver and making sure it continues to function as the beacon of justice that our founders envisioned. But at this moment, we most of all want to think about his family. And Michelle and I join the nation in sending our deepest sympathies to Justice Scalia's wife Maureen and their loving family, a beautiful symbol of a life well lived. We thank them for sharing Justice Scalia with our country. God bless them all and God bless the United States of America.
[20:49:16] HARLOW: And there you have it, brief but poignant remarks mostly about the man, mostly about the man that Justice Antonin Scalia was. The President calling him a larger than life presence on the bench, a man who influenced a generation, one of the most consequential thinkers to serve on the Supreme Court. Remember, this coming from a president who ideologically opposes where this justice ruled on just about everything, especially those key social issues. He thanked him for his extraordinary service to our nation.
Interesting, Gloria Borger, it stood out to me that the President said he was born to an Italian immigrant family. Did you notice that emphasis?
BORGER: Right. I did. I did. And what was also interesting was the President was very direct in saying that he intends to nominate a successor, that he will do it in due time. There's enough time for the Senate to confirm somebody, to give somebody a fair hearing and a timely vote, as he put it. So, no question about that.
HARLOW: All right. I do want to --
TOOBIN: And his framing was very much what we're going to hear for the next, six, eight, ten months, which is the Senate needs to do its job.
HARLOW: Absolutely. I do want to get back to Senator Sessions. Senator, thank you for waiting as we heard from the president. You heard at the end of those remarks President Obama saying, he will nominate a successor in due time. And he said the Senate will have plenty of time to vote on this nominee. And he called it your responsibility as a senator, the Senate's responsibility. And he said, this is about our democracy, saying that is what Justice Scalia stood for. Your reaction to the President saying he will make this nomination and that you as a senator and your colleagues have a responsibility to take up a vote on it?
SESSIONS: Well, he's made that decision apparently and he has every right to nominate. But it will be up to Congress or at least the Senate for confirmations occur to evaluate that nomination and decide whether or not to move forward with it. He has had success in getting two of his nominees through already during this term. And I think Congress -- the Senate is not going to be inclined to move fast this time. Normally a nomination this late for the Supreme Court or even the appellate courts don't make it through.
HARLOW: Senator, thank you very much. Obviously we'll be watching what happens. I do appreciate your time calling in for us tonight. Thank you.
SESSIONS: Thank you very much.
HARLOW: Thoughts to our panel?
BORGER: Well, I would just point out that Justice Kennedy was confirmed during an election year.
HARLOW: Eighty eight.
BORGER: In February of '88. So this notion of how there's not enough time, I think there was enough time in 1988.
HARLOW: Uh-hm.
BORGER: Now, that was a different time, of course, not as partisan. Kennedy was confirmed, I believe, unanimously.
CALLAN: Right.
HARLOW: Yes.
BORGER: And we don't approve the calendar in Congress anymore unanimously, right?
TOOBIN: I'm sorry to -- it was a context also for the Kennedy nomination was the Senate had just defeated Robert Bork for that seat 58-42. And there was tremendous relief to have a noncontroversial nominee following Robert Bork. So the handful of Democrats who wanted to put it off were sort of shouted down by their colleagues. But you know, it is a fair point that he was confirmed in an election year.
CALLAN: Just a long-term historical note of a 159 nominations to the Supreme Court, only, I think, 19 have ever been rejected. So --
HARLOW: There have been many dragged out for a long time.
CALLAN: Yes.
HARLOW: And Dana Bash, to you, one of them, if you look back to 1968, right? The GOP and the Senate ran out the clock when LBJ nominated Abe Fortas as chief justice. So, they've ran out the clock before. Here's the predicament, Dana that I think is that issue here. Right? You still have 11 months before the next president takes office and then however long it takes to get someone nominated and voted on by the Senate. How tough does that make the Senate races for who will be up against, Democrats who say, you're not doing your job as a senator? BASH: It could make it very hard. It's already going to be pretty
hard for a lot of Republican senators, for people who kind of follow the ins and outs, the last election, when Republicans took control of the Senate, the map was very favorable to Republicans. It's the opposite going into 2016 into this election year. There are a lot of endangered Republicans who are up for reelection. And to have whomever their democratic opponent is going to be pounding away at them saying that they are not doing their job as a United States senator by not forcing their leader to take up a vote or to move the process forward on the Supreme Court, I would imagine that this is not going to be helpful.
HARLOW: Uh-hm.
[20:54:27] BASH: Having said that, the flip side of that is, you know, when you have something like the Supreme Court at stake and in balance, that really does fire up the grassroots. Again, I can't emphasize that enough on both sides, but especially conservative grassroots. So, you could have Republican voters going out and getting energized about this issue and that could help incumbent Republicans.
HARLOW: Michelle Kosinski, I have 30 seconds. What stood out to you most as you covered the White House from the brief remarks from the President?
KOSINSKI: Just the President saying that this is bigger than any party, this is a bigger issue. It's not about politics. It is about democracy. And that's going to be something that we're going to keep hearing from the White House. You know, we don't know what the time frame is exactly. But we expect this is going to be pretty soon that they put out a nominee.
HARLOW: All right. Michelle Kosinski, Dana Bash --
TOOBIN: Why wasn't he wearing a tie?
HARLOW: OK.
TOOBIN: I thought he should have been wearing a tie?
HARLOW: I've got to get to a quick break. Jeff Toobin confused with the tie. We're going to take a quick break. I do want to tell you though that later this week, CNN will host two Republican presidential town hall events in South Carolina. All six of the remaining Republican candidates will participate live here on CNN. Marco Rubio, Ted Cruz, Ben Carson on Wednesday night. Donald Trump, Jeb Bush, John Kasich on Thursday night. Both events hosted by our Anderson Cooper. Both begin at 8:00 p.m. Eastern. Those are the town halls that will give the voters the chance the opportunity to question the candidates one on one. Of course, the passing of Supreme Court Justice Antonin Scalia will be addressed during those town halls as well. The Republican presidential town halls Wednesday and Thursdays this week, 8:00 p.m. Eastern only right here. We'll be right back.
(COMMERCIAL BREAK) [21:00:03] HARLOW: It is 9:00 p.m. Eastern. I'm Poppy Harlow. Thank you for being with me. We begin this hour with breaking news. The leading conservative voice on the United States Supreme Court now silent. Justice Antonin Scalia has died at the age of 79. He died in his sleep of natural causes during a trip to Texas. He was appointed by former President Ronald Reagan back in 1986.
