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Scalia Dies: Battle Begins Over Replacement; GOP Infighting Lights Up Debate Stage. Aired 7:30-8a ET

Aired February 14, 2016 - 07:30   ET



[07:32:29] CHRISTI PAUL, CNN ANCHOR: Thirty-two minutes past the hour.

And the passing of Justice Scalia is silencing the voice of the Supreme Court's most ardent conservative. Former CNN host Piers Morgan sat down with Justice Scalia. This was in 2012. But it's in- depth interview. Here's just part of the interview.


PIERS MORGAN, FORMER CNN HOST: Will you ever retire?

ANTONIN SCALIA, U.S. SUPREME COURT JUSTICE: Of course I'm retire. Certainly I'll retire when I think I'm not doing as good a job as I used to. That will make me feel very bad.

MORGAN: And as we sit here now what would you say your greatest achievement has been as the Supreme Court justice?

SCALIA: Wow. I think, despite the fact that not everyone agrees with it. I think the court pays more attention to text than it used to when I first came on the court and I like to think that I've had manager to something to do with that. I think the court used much less legislative history than it used to in the past. In the eighties, two-thirds of the opinion would be discussion of the debates on the floor and the committee reports and that doesn't happen anymore. If you want to talk about individual --

MORGAN: On that point, on that legislative history point -- again, critics will say hang on a second because you are such a constitutionalist and always go back to the way they framed the Constitution and so on, they debated all that. I mean, that is in its way legislative history, isn't it?

SCALIA: What is? What is? What is?

MORGAN: The framing of the Constitution.

UNIDENTIFIED MALE: The Federalist papers.

MORGAN: The framing of amendments and so on. What's the difference really?

SCALIA: I don't -- I don't use the Madison's notes as authoritative on the meaning of the Constitution. I don't use that. I use the Federalist Papers but not because they were the writers of the Federalist Papers were present. One of them wasn't. John Jay was not present at the framing.

I use they had them because they were intelligent people of the time and therefore what they thought this language meant was likely what it meant.

MORGAN: Why do you have such faith in those politicians of that time? You know, I mean these days, if the current crop of politicians created some new Constitution, people wouldn't have the faith that, the unburning unflinching faith that you do. Why are you so convinced that these guys over 200 years ago were so right?

SCALIA: You have to read the federalist papers to answer that question. I don't think anybody in the current Congress could write even one of those numbers.

[07:35:06] These men were very, very thoughtful.

I truly believe that there are times in history when genius bursts forth at some part of the globe, you know, like 2000 B.C. in Athens or quintessential Florence for art. And I think one of those places was 18th century America for political science, you know?

Madison said that he told the people assembled at the convention, gentlemen, we are engaged in the new science of government. Nobody had ever tried to design a government scientifically before. They were brilliant men. And --

MORGAN: And wish you had a few of them now?

SCALIA: I wish by had a few of them now. And I certainly do not favor tinkering with what they put together.


VICTOR BLACKWELL, CNN ANCHOR: Last night, Piers Morgan sent out his condolences on Twitter, writing, "Didn't agree with many of Justice Scalia's views but he was a brilliant man of great principle and integrity. Rest in peace."

Joining us on the phone now, Ed Whelan, president of the ethics and Public Policy Center. He was a former law clerk and for Justice Scalia.

Ed, thanks for joining us this morning. First, I want to start with your thoughts on the justice's passing.

ED WHELAN, PUBLIC POLICY CENTER (via telephone): Well, obviously, like others who knew and admired and loved him, I'm very saddened. It's a great loss for the nation. He was a hero and mentor to me. And I'm still absorbing the shock and grief. BLACKWELL: You know, he certainly had his detractors as any

passionate jurist does. Did he revel that position? What did he believe his legacy, his space was on that court?

WHELAN: Well, Justice Scalia was deeply committed to originalism, the method of constitutional interpretation that he believes to be faithful to the actual Constitution. He fought against this notion of a living constitution which is really sort of a zombie constitution that has no inherent meaning, instead is infused with whatever meaning current justices want to give it.

He obviously had some successes and some big losses, but I think over time, as the political meet over particular issues diminishes, his wisdom will be more and more appreciated.

BLACKWELL: Having clerked for the justice, you spent a lot of time working with him, working for him. I wonder in getting the news of his passing if there is a specific moment that you think of first, one that maybe we don't know about -- something about the justice that we have not learned about in the last several hours?

WHELAN: Well, I think just think of his love, the vigorous argument, the sparkle that would come into his eye, his wonderful laugh. You know, he loved debate, even as he disagreed with some of his colleagues. He very much liked them. He was just I think a real model of a man.

BLACKWELL: Let's turn to the future of the court. You wrote something for "The National Review" and I want to put it up on the screen for our viewers. Just part of it you said, "Senate Republicans would be grossly irresponsible to allow President Obama in the last months of his presidency to cement a liberal majority that will wreak havoc on the Constitution. Let the people of America decide in November who will select the next justice."

What do you say to those people who elected in 2012, those people who voted for -- who elected the president, they have decided who should elect the next justice? He has a responsibility to put forward a nominee and the Senate has responsibility to vote. You say to them what?

WHELAN: Well, there are people who elect the senators too to do their job and this is the classic clash of politics that Justice Scalia would have especially appreciated. So, those, you know, senators I think owe it to their constituents to stand up for their principles and, you know, here we are in the midst of the campaign. I think this is an issue that deserves to be decided by the people.

And I'm not really sure why progressives who see themselves as champions of the people are so afraid of having this issue be decided by the president that people pick.

BLACKWELL: All right. Ed Whelan, thank you so much for spending a little time remembering your friend, Justice Scalia, and looking ahead to what we know will be a contentious fight to fill his vacancy there on the bench. Ed, thanks. WHELAN: Thank you.


PAUL: Victor, we want to take a look at last night's heated GOP debate, the fight that took place center stage, some calling it a slugfest, others say it was shameful.

We have more in a moment.



[07:43:17] GOV. JOHN KASICH (R-OH), PRESIDENTIAL CANDIDATE: This is the ninth or the tenth debate, and when I've been watching here this back and forth and these attacks. Some of them are personal. I think we're fixing to lose election to Hillary Clinton if we don't stop this. I mean, the fact is -- you know, I would suggest why don't we just take all of the negative ads and all the negative comments down from television and let us talk about what we're for and let's sell that and the Republican Party will be stronger as the result.


BLACKWELL: Republican infighting -- we saw a lot of it last night during the debate. Kasich said he wanted none of it there trying to stay above the fray with that persona on stage last night. But there were some other breakout moments. Remember, Jeb Bush putting some distance between himself and former President Georgia W. Bush over eminent domain and hitting Donald Trump in the process.


JEB BUSH (R), PRESIDENTIAL CANDIDATE: There are all sorts of intrigue about where I'd disagree with my brother. There would be one right there. You should not use eminent domain for a private purposes.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: He shouldn't have used it then Jeb.

UNIDENTIFIED MALE: But that was his brother.

BUSH: It's very different. Transmission lines, pipelines, bridges, highways, all of that is proper use of eminent domain. Not to take an elderly women's home to build a parking lot so that high rollers can come from New York City to failed casinos in Atlantic City. That is not the appropriate thing to do.


BLACKWELL: All right. Let's talk about the debate. I want to bring in senior CNN White House correspondent Jim Acosta. Also with us, CNN political commentator, Tara Setmayer.

Good to have both of you. I want to start with what the debate started with. That moment of silence for Justice Scalia.

Tara, elections have consequences and were remembered after tragedies that these elections have consequences.

[07:45:07] Just look at Dr. Carson's fall in the polls after Paris and San Bernardino.

Do you think that the justice's death dramatically shifts this race?

TARA SETMAYER, CNN POLITICAL COMMENTATOR: Well, I think it highlights the seriousness of this campaign. I don't know that people have really crystallized the seriousness of what it means to run for president of the United States because of the Donald Trump reality show. And this issue right here. I mean, usually, the Supreme Court justice nomination issue isn't very sexy. People kind of their eyes glaze over, ah, we don't want to hear about that.

But that's hugely important and now, now that we have it in real time and real life, this right here is one of the most important -- important responsibilities of the president of the United States is to nominate a Supreme Court justice. And the complexion of the court could dramatically change. So, when you have a 5-4 court on a lot of things, bringing in another -- replacing a conservative stalwart like Antonin Scalia, I mean, he was bigger than life in the legal community is going to be very difficult.

And now, if you put someone like Donald Trump, did you hear him answer that question last night? It was unintelligible. And then compare that to Marco Rubio or Ted Cruz or anybody else on the stage minus maybe Ben Carson, they all had -- they refer to the Constitution, the importance of it and what that means.

Donald Trump was completely out of his league on those questions and people need to pay attention, because things like this matter. Your interpretation of the Constitution and who you want on the court and how you would govern as president should matter. Not just bluster on one-liners and acting like a petulant child and pointing your finger and say, well, see, politicians just talk. That's not going to fly in the real world.

BLACKWELL: You know what else matters, Jim, is tone. And we saw a bit of a shift in the tone last night, although Governor Kasich who came in second in New Hampshire, has admitted he's not going to win South Carolina. He tried to stay above the fray. He has this happy warrior tone.

Is that something that is resonating this cycle? I mean, it sounds like voters are more interested in a warrior than the happy.

JIM ACOSTA, CNN SENIOR WASHINGTON CORRESPONDENT: Well, it resonated in New Hampshire and he did very well out there. The question for John Kasich is whether that translates to these upcoming states.

You know, Tara talks about the Donald Trump reality show, but the reality is for the rest of the Republican field is that Donald Trump is doing extremely well right now because of the Donald Trump brand. This tell it like it is brand that seems to really appeal to disaffected Republicans, a lot of conservative Reagan Democrats frankly.

And when they see a Donald Trump square off with Jeb Bush, they really like it. I go to these rallies just about every other day with Donald Trump, you know, you have 5,000, 10,000 people, 15,000 people on some cases, and they are just eating it up. This is Donald Trump trying to rebrand and remake the Republican Party. And this may be the Republican Party's last chance to stop him.

And the question is whether or not, you know, all of these candidates succeed. You saw them all going after him last night. I suspect we're going to see that the rest of this week, because if Donald Trump wins the South Carolina primary, you know, barring some kind of implosion on his part which is what all of Washington has been banking on all along, Donald Trump is really -- it is unlikely he's going to be stopped.

Now, Jeb Bush bringing in his brother, tomorrow. George W. Bush, the former president that could potentially hurt -- help him down in South Carolina because Georgia W. Bush is very popular. And to me, it was just one of the incredible things to see during this debate, who would have thought you would see during a Republican debate, the leading frontrunner candidate attacking a former president like George W. Bush, who still extremely popular inside the Republican Party, and especially among conservatives.

This is a really watershed moment for the Republican Party because, you know, Donald Trump trying to remake the Republican Party. He wants to be the leader of this Republican Party and to see him go after the family that, you know, led this country through two presidencies --

BLACKWELL: Let me --

ACOSTA: It's just something you just would never imagine happening during this cycle.

BLACKWELL: Let me take that to you, Tara. Donald Trump trying to take the shine off George W. Bush as he comes in to this campaign, to help his brother in South Carolina. Is that going to work? What do you think about the strategy?

SETMAYER: That's not going to work in South Carolina. Jim is right. I mean, George W. Bush is still very popular there. They call South Carolina "Bush Country".

But to go back to the point of Trump trying to rebrand the Republican Party, Donald Trump sounded like a Democrat last night. That's not -- that's not conservatism. That's not what the Republican Party stands for at all.

Donald Trump really showed his liberal progressive lifetime believes on most things coming into that and almost imploding on the issue of 9/11 and George W. Bush. I mean, defending Planned Parenthood, claiming -- I was waiting for the Code Pink chant of "Bush lied, people died" coming out of Trump's mouth.

[07:50:08] I think you're going to see a lot of ads this week in South Carolina reiterating the fact that Donald Trump is not a Republican, espousing things that crazy left-wing conspiracy theorist folks espouse against the Republicans. I think that might give some people some pause.

The people who are solid with Trump, he can say anything he wants. The other folks that are in the middle that maybe just like his attitude but don't really realize the consequences of someone like him, perhaps pointing out the things that came out of his mouth last night that are not Republican at all --

BLACKWELL: However --

SETMAYER: -- may be able to sway them.


ACOSTA: Tara, why do you think that Republicans cheer at these Donald Trump rallies? Why do you suppose that is?


SETMAYER: I don't think they're all Republicans.

BLACKWELL: We've seen that at this point throughout this campaign since he launched in July, many people saying that he is not a conservative. It has not worked up to this point. Of course, we're just counting down to South Carolina.

We've got to wrap it there. We've got ten minutes left in this broadcast, and we've got a few other things to get to.

Tara Setmayer and Jim, we'll get back to you in just a moment. Thank you both.

SETMAYER: Thank you.


PAUL: There is so much more to talk about with this debate last night, including clashes over immigration. Details on how Rubio used his Hispanic heritage to take a jab at Ted Cruz on the issue. That's next.


[07:55:04] ACOSTA: All right. As we wrap up this morning, we want to give a few final thoughts on the legacy of Justice Antonin Scalia. He was the most senior member of the Supreme Court, confirmed in 1986 by Ronald Reagan, considered a stalwart of conservative ideals.

I'm joined very quickly with Errol Louis, our political commentator. Errol, when the history books are written, how do you think Scalia

will be remembered? I think Reagan knew -- sometimes Supreme Court justices are mysterious. You don't know exactly how they're going to turn out once they get on the high court, but I think Ronald Reagan knew exactly what he was getting himself into when he tapped Antonin Scalia.

ERROL LOUIS, CNN POLITICAL COMMENTATOR: Well, yes and no. I mean, I think the outcome of cases I think is what we look at because we always look at the politics of it.

But I'll tell you, I heard a couple of Supreme Court arguments and just watching the way things operate at the court is really the result of Antonin Scalia. It's lively. There's sort of a robust debate. That, plus the fact that everyone has to at least encounter or cope with his style of analysis, going back to the 18th century, looking at what words actually mean, pulling out dictionaries.

This is something that he brought that has spread all throughout it. I mean, it was being taught in law school when I graduated 10 years ago. This is something that people really should sort of reckon with as part of his legacy. The whole way we think about the Constitution has changed at the Supreme Court level because of Justice Scalia.

ACOSTA: Right. And when people talk about the Reagan revolution, Antonin Scalia, I would imagine he might be remembered as somebody who was very instrumental and part of that because he, on the high court, you know, he really was a guardian of Reagan conservatism and perhaps even beyond that. He is often mentioned as somebody, the likes of which, you know, people would like to see on the high court in the future. When you talk to conservative Republicans, they would pick another Antonin Scalia -- isn't that right, Errol?

LOUIS: Well, absolutely. This is what they would like to see.

Again, mostly in terms of outcome, though. You know, even the candidates who are attorneys I think haven't really properly given him his due just yet, as far as just changing legal philosophy. When you look at the Federalist Society, I mean, there are waves and waves of groupies who don't just celebrate the life and legacy of Justice Scalia, but it really tried to replicate it all throughout the law schools in the nation the lower courts, the state courts.

So, we've got an entirely new way of looking at the law that is really quite deeply grounded. And it is inherently conservative, small C conservative. Not necessarily a movement conservative who's trying to accomplish this or that policy goal, but just a way of looking at the world and looking at the law that says not so fast. And that, to me, is what Scalia will always have stood for.

ACOSTA: And now a big opportunity for President Obama to influence the high court if -- if he can get a nominee through the Senate.

Errol Louis, thank you very much.

And, Victor and Christi, thanks for sharing the morning with me. It was great being with you, and I'll send it back to you.

PAUL: Thanks, Jim. It has been great to have you here.

BLACKWELL: Good to have you.

PAUL: Thank you for taking the time.

Always good to see you. And thank you so much. We appreciate you keeping us company in the morning.

BLACKWELL: A special edition of "INSIDE POLITICS" starts right after the break.