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STATE OF THE UNION
Interview with Sen. Marco Rubio; Interview With Former Florida Governor Jeb Bush; Interview with Sen. Patrick Leahy; The Death of Supreme Court Justice Antonin Scalia; Potential Supreme Court Justice Nominees. Aired 9-10a ET
Aired February 14, 2016 - 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DANA BASH, CNN ANCHOR: Hello. I'm Dana Bash in Washington, where the state of our union is steeling for a fight.
The sudden death of Supreme Court Justice Antonin Scalia sent an already tense presidential race into overdrive. And the political drama played out live on television last night.
Just moments before the start of a Republican debate, President Obama vowed to fill Justice Scalia's seat.
(BEGIN VIDEO CLIP)
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: 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.
(END VIDEO CLIP)
BASH: But, within minutes, the GOP candidates on the debate stage demanded that the Senate block any potential nominee.
(BEGIN VIDEO CLIP)
DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: I think it's up to Mitch McConnell and everybody else to stop it. It's called delay, delay, delay.
(END VIDEO CLIP)
BASH: A partisan showdown that will certainly play out on the campaign trail.
We are going to look at this from every angle this morning, but, first, two of the candidates on that debate stage are here. We will get to Jeb Bush in a moment, but first Marco Rubio, who had a lot on the line, trying to bounce back from what even he admitted was a disastrous performance at the last debate. Well, last night, he argued that the stakes have been raised.
(BEGIN VIDEO CLIP)
SEN. MARCO RUBIO (R-FL), PRESIDENTIAL CANDIDATE: It reminds us of this, how important this election is. And someone on this stage will get to choose the balance of the Supreme Court. And it will begin by filling this vacancy that's there now.
(END VIDEO CLIP)
BASH: Joining me now is Senator Marco Rubio.
And, Senator, as soon as we learned of the passing of Justice Scalia, you released a statement saying that the next president, not President Obama, should pick Scalia's replacement.
Now, President Obama said yesterday that he plans to fulfill his constitutional responsibilities and nominate a successor in due time. And as senator, don't you have a responsibility as well to consider that nominee?
RUBIO: Well, I don't think the Senate's going to move on it. And I agree with that decision.
The precedent's been set. It's been over 80 years now since, in the last year of the last term of a sitting president, there isn't Supreme Court nominees, 80 years. And there's a reason for that.
And the reason is that the next president should have a chance to fill that void, not someone who's never going to answer to the electorate again. We're going to have an election this year. And in the election, people are going to get to choose a candidate for president.
And part of that vote will be, what kind of nominee do you want, because we're going to be asked now who -- what kind of person or what kind of justice would you put on the Supreme Court? So, let the voters weigh in, in November, and then we will have an appointment. The court can function with eight justices. It does it all the time.
BASH: Well, and we will get to that in a second.
But it does it all the time, but this is an extended period of time. This is probably more than a year without a Supreme Court justice, with, you know, just eight justices.
RUBIO: Yes, but the court doesn't meet all year. Yes, no, the court doesn't meet all year. As you know, they have a term. And it ends this summer.
And so they have a few months ahead. They will have eight justices sitting there for these rulings. And they have done that before. There are times when justices -- Justice Kagan had to recuse herself early on in her tenure in the Supreme Court, because she had just served in the administration. So, this is not an unusual situation. The president can appoint
whoever he wants, but Mitch McConnell's already made it clear we're not moving forward on any nominees in the Senate until after the election, and I agree with that.
BASH: You talked about what kind of nominee you would be OK with. One name that has been floated for the Supreme Court for President Obama to nominate is district circuit court Judge Sri Srinivasan. And in 2013, the Senate confirmed him 97-0. You were one of those 97. You voted to confirm him.
So, if President Obama were to put forward his name, why not support him, since you have done it in the past?
RUBIO: Well, there's a different criteria, obviously. It's a heightened level of scrutiny. They will have to go through Judiciary. I usually don't comment on nominees until they have gone through that process.
Appellate courts are important, but the Supreme Court is the ultimate appellate court. So, there's a whole new level of scrutiny and hearings and testimony. And so I would reserve judgment no matter who he nominates until that process has concluded itself.
But, again, irrespective of who the president nominates, the Senate is not moving forward on it. Mitch McConnell's already made that very clear. So, the next president will have a chance to appoint somebody. And when I'm president of the United States, I'm going to look for someone like Justice Scalia. They're hard to find.
But there's a lot of young jurists that have been inspired by his service and his writings. And these are the sorts of people I would like to see on the Supreme Court.
BASH: Let's talk about the debate last night, because there were a lot of extraordinary moments. But one specifically was when you turned to Senator Cruz and questioned his ability to speak Spanish. Let's listen.
(BEGIN VIDEO CLIP)
RUBIO: I don't know how he knows what I said on Univision because he doesn't speak Spanish.
And, second of all, the other point that I would make...
SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: (SPEAKING SPANISH)
(END VIDEO CLIP)
BASH: Senator, were you calling into question whether or not Senator Cruz is a real Latino?
RUBIO: No, I was calling into question whether he even knows what I'm saying.
When he -- he points to this interview on Univision in which he claims I said something different than what I say in English. He has no idea. He's just going off what other people are telling him. And it's false. It's just not true.
And the bottom line is, there's been this disturbing pattern over the last couple weeks from Ted Cruz of just saying things that are not true. Just in the last week, he's lied about my marriage -- record on marriage. He's lied about my record on Planned Parenthood.
Of course, he lied about Ben Carson in Iowa. But, last night, Donald Trump says he's issuing robo-calls, doing the same thing to him. And then he also is not telling the truth about immigration. I mean, he goes around portraying himself as this purist, you know, Ted Cruz, the purist on immigration.
But I was there two, three years ago, when he was, you know, passionately arguing at the committee that we needed to pass immigration reform, we needed to do bring people out of the shadows, we needed to find a compromise on people that were in this country illegally.
And now he portrays himself as this sort of purist who's never changed his position on the issues. It's just not true. And I think this pattern of saying things that aren't true has become very disturbing when it comes to Ted Cruz's campaign.
BASH: Senator, you used the word lie last night. You just used it many times now. That's a pretty tough charge. And the rhetoric is really escalating.
RUBIO: Well, there's no other way to describe that. It's a lie.
When you say something that's not true, it's called a lie. That's the definition of it. Now, I don't know about every other aspect of his life. I'm not attacking him there. I'm just saying, on this campaign, he is saying things that are not true.
And he's saying it repeatedly. And he knows they're not true.
BASH: Let's drill down on one of the things that you just mentioned, which is gay marriage. Ted Cruz is vowing to overturn the Supreme Court's gay marriage decision through a constitutional amendment. He's criticizing you for wanting to leave that ruling in place. Why isn't that a fair criticism?
RUBIO: Because that's not what he's saying. What he's saying is that I have called it settled law.
Those words have never come out of my mouth. He's making it up. It's a lie.
BASH: So, what would you do?
RUBIO: What I have said is, the Supreme Court decision, it's current -- well, first of all, presidents can't overturn Supreme Court decisions. And he knows that.
Only the Supreme Court -- and I think that case will continue to be tested. It's happening now. The state of Tennessee is working through a case that I think will ultimately wind itself -- find itself at the Supreme Court.
I disagree with the decision. I have always said I think it's bad law. I believe in the 10th Amendment. I think states should regulate...
BASH: But he supports a constitutional amendment. That is one thing that you could push for. That's not on the table for you?
RUBIO: Well, no, that's not what the -- his constitutional amendment is an amendment that recognizes that the states have the power to define marriage.
That's what the constitutional amendment he's -- he's promoting. And my argument is that already exists.
BASH: OK, Senator, before I let you go, you had quite an exchange last week before the New Hampshire primary with Chris Christie. He is now not in the race anymore. After he dropped out or since then, have you called him?
RUBIO: We have.
We have tried to get ahold of him. I think he's taking a few days away from all the grind. And I understand that. I know we spoke to his staff. So, we're trying to set up a time to talk. I know he had some briefings the day after -- or the same day he had made that decision, catching up on work.
But I want to be clear. I have no animus towards Chris. I like him very much. I always have. This is a political campaign. It's a competitive environment. And people are going to exchange. And we gave as good as we got. Like I said, last week in the debate, obviously, things didn't go the way we wanted it to, but, last night, they went very well.
And -- but I have -- I think Chris is not done with public service. And my sense is, you're going to see him serving this country in different capacities now and in the future. And we wish him the best.
BASH: Senator, thank you so much for your time. And have a good Valentine's Day.
RUBIO: Thank you.
BASH: And with the next Republican primary just six days away, the debate stage was sizzling hot, and the insults got personal.
(BEGIN VIDEO CLIP)
TRUMP: George Bush made a mistake. We can make mistakes. But that one was a beauty. We should have never been in Iraq. We have destabilized the Middle East.
JOHN DICKERSON, MODERATOR: But so I'm going to -- so you still think he should be impeached?
JEB BUSH (R), PRESIDENTIAL CANDIDATE: I think it's my turn, isn't it?
TRUMP: You do whatever you want. You call it whatever you want. I want to tell you. They lied.
BUSH: I could care less about the insults that Donald Trump gives to me. It's blood sport for him. He enjoys it.
(END VIDEO CLIP)
BASH: Joining me now is former Governor Jeb Bush.
And, Governor Bush, let's start with the passing of Supreme Court Justice Antonin Scalia.
Senator Cruz, Senator Rubio and Senate GOP leader Mitch McConnell all say that the next president should replace Scalia, not President Obama. At the debate, it sounded like you disagree. What is your position?
BUSH: No, I think President Obama is going to submit a nominee. And in all likelihood, this person will be out of the mainstream, and they will be rejected by the Senate. That's his prerogative.
He has every right to do it. And the Senate has every right to not confirm that person. And that's what I said. He clearly has the power to do it. But given his choices of Supreme Court justices in the past, the Senate of the United States should not confirm someone who's out of the mainstream.
BASH: But, if I could just clarify, right now, it sounds as though...
BASH: ... the Republicans who run the Senate aren't even going to schedule a vote.
You think that one should be scheduled?
BUSH: I -- it's up to Mitch McConnell. That's really not important to me.
BASH: You mentioned what kind of Supreme Court nominee you would pick.
You know this. Many conservatives still haven't gotten over the fact that your father chose David Souter for the Supreme Court.
BUSH: Yes. BASH: A lot of them are still smarting over the fact that your
brother's choice for chief justice, John Roberts, ended up with somebody who helped save Obamacare.
Isn't this a problem for you, that this whole question of a Supreme Court nominee is front and center right now, given conservative skepticism?
BUSH: Well, the Souter choice was unfortunate. He wandered off into the liberal camp for sure.
John Roberts, I think, can be a defended choice, for sure. Just, you know, the Obamacare decision, I was disappointed in, but he's made some really good rulings beyond that.
Here's the deal. I think the lesson learned is you pick someone with a proven, longstanding record, a history that you can point to. When he wasn't considered or she wasn't being considered for a nomination to the Supreme Court, when he or she was doing their work, and the consistency of their rulings was what mattered.
That's the Scalia approach. He was very consistent on his interpretation and his rulings. And that's what we need.
BASH: Let's talk about the debate last night. You and Donald Trump went at it again a lot. There is so much heat between the two of you.
BASH: You really don't like each other, do you?
BUSH: I don't know him well enough to not like him.
I do think that he would not be the proper nominee for our party. He's not a conservative. He's not a serious person. His conversations in debates, when he talks about foreign policy, it's -- it's scary. To say that Russia could be an ally, he basically seemed more interested in Putin than my brother, for example.
I mean, we shouldn't be changing teams here. We ought to be focused on what are the -- what's the national security interests of our own country. And I don't think that he's really thought it through.
BASH: And, Governor, somebody who is coming to your aid,joining you on the campaign trail tomorrow for the very first time, is your brother, George W. Bush.
BASH: You have been a presidential candidate for eight months. Why now?
BUSH: Because we're nearing the beginning of this process. And it's -- I think there's a lot of interest in my brother coming. And he's been helpful all along in a lot of different ways, giving me advice and helpful raising money, doing all sorts of things. But this was the appropriate time for him to do something he's not
BASH: Yes. No, he hasn't.
BUSH: He hasn't -- he hasn't been a -- he hasn't done anything public during his -- since he left office.
So, this -- this is the right time, right when the interest is -- when it's important and when people are watching.
BASH: You say that, but, in Iowa, in New Hampshire and even before those votes were taking place, maybe he's a controversial figure, in general, but, as you well know, with Republicans, he is quite popular still. So why did you wait this long?
BUSH: Yes. No, absolutely.
BASH: Any regret -- any regret about waiting this long? While you're -- you know, at this point, you're -- at the beginning, you were riding high, but now, you know, you're struggling for survival.
BUSH: Well, I feel like after three or four obituaries have been written, I feel like I'm still alive and hanging in there and doing -- making good progress. And my brother will help a lot.
BASH: How will he do that?
BUSH: But the point is, is he a popular Republican? You bet he is. He will make the point, I think, I hope, tomorrow that he knows what it takes to be a president of the United States, to be commander in chief, to keep the country safe, and that he believes that I have those skills, based on my record and based on how he knows me.
And that will be an incredible validator in South Carolina, where values matter and where national defense matters a lot. So, I'm looking forward to the event. We should have a great crowd, and it will help my campaign a lot.
I also know that I have to share my record and who I am. It's not a delicate balance at all. It's adding. It's, yes, I'm a Bush. I'm proud of it. I'm proud of my brother, my dad, my mom. I'm proud of every Bush. I love them dearly. And I also have a story to tell. And I have detailed plans to fix the mess in Washington, D.C. It's all of that. That's what a campaign is about.
BASH: And, lastly, South Carolina is the state that kind of rescued your brother's campaign in 2000. Do you need to finish at least third in order to keep going? Where do you see the -- your goal, your real goal, your candid goal, for South Carolina in terms of your long-term prospects?
BUSH: Well, my candid goal is to beat expectations, whatever those are, that I don't control. [09:15:05]
And I intend to be in this over the long haul. And as others drop out, my hope is to be there to take on the front-running candidate to make sure that people know that the Republican Party is the conservative party, and it needs a conservative to lead it to victory against Hillary Clinton or Bernie Sanders.
BASH: So, no matter...
BUSH: That's my mission. I only focus on that.
BASH: No matter what you do -- no matter what you do, how you finish in South Carolina, you're moving on?
BUSH: My expectation is, I will beat expectations here.
BASH: All right, Governor, thank you very much. Thanks for your time. Appreciate it.
BUSH: Thanks. Thank you very much.
BASH: And the president says, of course he will nominate a new Supreme Court justice, but Republicans who run the Senate say he's wasting his time.
That battle is next.
BASH: Welcome back to STATE OF THE UNION. I'm Dana Bash, in for Jake Tapper.
The sudden death of Supreme Court Justice Antonin Scalia has huge implications, and it sent both parties scrambling.
President Obama last night pledged to nominate a replacement.
(BEGIN VIDEO CLIP)
OBAMA: These are responsibilities that I take seriously, as should everyone.
They're bigger than any one party. They are about our democracy. And they're about the institution to which Justice Scalia dedicated his professional life and making sure it continues to function as the beacon of justice that our founders envisioned.
(END VIDEO CLIP)
BASH: I'm joined now by the top Democrat on the Senate Judiciary Committee, Patrick Leahy of Vermont.
Senator, thank you so much for joining me. I will just start with what the Senate majority leader, Republican
Mitch McConnell, said last night. He laid down the gauntlet, saying the Senate will not confirm anybody until after the presidential election.
SEN. PATRICK LEAHY (D), VERMONT: Well, I think he's making a terrible mistake. And he's certainly ignoring the Constitution and ignoring responsibilities.
President Obama is doing the same thing that President Reagan did. At the end of his term, he nominated a Supreme Court justice. The confirmation was in the last year of President Reagan's term. The Democrats controlled the Senate. None of us intended to play politics with something as important as a Supreme Court nomination.
And the Democratic-controlled Senate voted 97-0 in favor of President Reagan's nominee in the last year of his presidency.
The fact is, when you elect a president, you have to assume, if there's Supreme Court nomin -- vacancies, he is going to make the nomination.
LEAHY: And the -- it would be a sheer dereliction of duty for the Senate not to have a hearing, not to have a vote. You know, we have got...
BASH: But, Senator, I want to ask you about -- about something called the Thurmond rule, which is an informal agreement in the Senate that the party not in the White House blocks all judicial nominees during a presidential campaign season.
BASH: You subscribed to that when it was the opposite, so why is it different now?
LEAHY: Well, there is no such thing as a Thurmond rule. I used to tease the Republicans about it.
But I will give you an example. For the last two years of President George W. Bush's term, Democrats were in control of the Senate. By this time, we had confirmed two or three times as many judges of George Bush's than the Republicans have of President Obama's.
They're playing politics, the same way they did when they killed about 70 of President Clinton's judges by their pocket veto. The fact of the matter is, a Supreme Court justice, let's have a vote. Let's have a debate.
The Senate has more recesses scheduled, more holidays scheduled this year than I have ever seen in my time there.
BASH: Right, but...
LEAHY: We ought to go forward, have a debate.
BASH: You know that the Republicans are arguing it's not about time spent in Washington. It's about which president gets the chance to nominate the pick.
You know, I have been covering you in the Senate for a very long time. And I just know from experience, as do you, where you sit on these issues depends on where you stand. And if there were a Republican in the White House, Democrats were in charge of the Senate right now, I bet you would be arguing to move forward on the Supreme Court nominee. Fair?
In fact, I was there when the Democrats were in charge of the Senate in the last year of President Reagan's term, a member of the Judiciary Committee, and I urged that we go forward with President Reagan's nomination. And we did.
So, I mean, I'm pretty clear where I am. Now, Justice Scalia was a friend of mine. We disagreed on a lot of things. I had a lot of respect for him and his family. In fact, his youngest son and our youngest son used to play soccer in grade school on Saturday mornings.
Justice Scalia, Nino -- we would call him Nino -- and I would stand there in our old clothes watching the kids playing and joking back and forth.
So, I mean, this has to be a terrible blow to his family. Let's not add to that blow by politicizing this. Let's do exactly what President Obama, what Democrats did for President Reagan and have the vote.
BASH: Senator Leahy?
LEAHY: Yes, go ahead.
BASH: Do you think that -- do you think that if Republicans continue down this road, that they say they're not going to bring up whomever the nominee is for a vote, would you recommend to the president a recess appointment?
LEAHY: I don't even think we're there. I think the president -- and I have talked to the White House last night -- I think the president has to nominate somebody, nominate a qualified person, a highly qualified person.
BASH: But would you rule -- would you rule it out if things don't change the way they are now?
LEAHY: Well, I don't even think -- I don't even think we're there.
I think what we ought to do is nominate somebody. If the Republican leadership refuses to even hold a hearing, I think that is going to guarantee they lose control of the Senate, because I don't think the American people will stand for that.
They want us to do our job. They can see us doing recess after recess, time off all year long. Tell us to come back, cancel one of those recesses, come back and have the hearing and have a vote. That's what the American people expect the Senate to do.
BASH: All right.
Senator Leahy, thank you so much for your time. We will be watching what goes on when you all come back to town after the Presidents Day recess, speaking of them.
Thank you very much.
LEAHY: Thank you. It is cold in Vermont, but I'm -- I'm glad to be home.
BASH: Well, keep warm. Keep warm. Keep warm.
LEAHY: Thank you.
BASH: And just when you thought the stakes in this presidential race couldn't get any higher, they have. How will the politics of the Supreme Court play out on the campaign trail?
BASH: Welcome back. I'm Dana Bash.
And news of Justice Scalia's death hit the campaign trail like an earthquake with political aftershocks immediate. Partisans deeply divided over who should get the pick of the next Supreme Court justice.
(BEGIN VIDEO CLIP)
HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: Barack Obama is president of the United States until January 20th, 2017. That is a fact, my friends, whether the Republicans like it or not.
(END VIDEO CLIP)
BUSH: So just how seismic an event is this for presidential politics and the race this year?
Joining me now are Donna Brazile, vice chair of the Democratic National Committee, conservative radio show host, Hugh Hewitt, and Bob Woodward, author and associate editor of "The Washington Post." Thank you all, esteemed panel here.
DONNA BRAZILE, VICE CHAIRWOMAN, DEMOCRATIC NATIONAL COMMITTEE: Good morning.
BASH: Bob, I'll start with you. If Republicans succeed in blocking President Obama's nominee, what are the political ramifications?
BOB WOODWARD, AUTHOR, OBAMA'S WARS: Well, I think they're immense, and I think this is a potential minefield for everyone including Hillary Clinton and the Obama White House because if you think ahead, because it was a conservative justice who died who's going to be replaced, the argument by the Democrats is, gee, we're going to put a fifth liberal on the Supreme Court. The Republican nominee can go out and say, we are going to preserve the balance.
And in the world now of real voters, I think it is the persuadable voter or the independent who's likely in a positive way to respond to the idea. Yes, let's preserve the balance. Let's not do anything radical.
BASH: That's true, but it also has the potential to really energize the base in both parties. I mean, nothing energizes conservatives, for example, like the Supreme Court possibility.
HUGH HEWITT, HOST, "THE HUGH HEWITT SHOW": You're right, Dana. And I agree with Bob, the minefield is on both sides. But if I were a Republican, whether the majority leader all the way down to the county clerk and every nominee, I would say very simply, no hearings, no votes. Lame ducks don't make lifetime appointments. I would say that again --
BASH: And he's (ph) a lame duck (INAUDIBLE) a year out?
HEWITT: Easily. The last time -- Justice Kennedy has been referred to a lot -- was nominated in November of 1987. After Judge Bork had been blocked that vacancy occurred in June of 1987. So there is no precedent.
And I -- and I would simply add the base will not forgive anyone. Senators will lose their jobs if they block the blockade. There should be an absolute blockade on this. And Patrick Leahy, who was your guest earlier, voted 27 times to deny a vote or a hearing to Republican nominees between 2001 and 2003. Patrick Leahy created the conditions that he was decrying right now.
BASH: Donna, you heard Hugh say that Republicans will lose their job, but obviously what you're hoping, and the politics of this, is that Democrats can hold this over -- vulnerable Republicans saying you're not doing your job.
BRAZILE: Absolutely. Look, there are 34 Senate seats up, and many of those seats are in so-called presidential battleground states. If you're Senator Johnson from Wisconsin, Senator Toomey from Pennsylvania, if you're Senator Kirk from Illinois and many of the other states, Senator Portman from Ohio, these senators must decide whether or not they are going to be branded as not just voting to shut down the government, the federal government, but also shutting down the Supreme Court at a time when the Supreme Court has a lot of big issues on the docket, 21 cases are scheduled to be heard in March -- 21.
So I look forward to hearing the Republicans discuss how they will block President Obama, again, while there are so many issues, tough issues, before the court.
WOODWARD: But that's a processed question. And I think those -- look, if you're a Republican running and you can say, keep me there, balance is really important. This isn't about the left or the right. This is about the center who's going to decide the election.
BASH: Isn't it also about President Obama's legacy?
He has been very clear in a lot of different moves lately that he's not afraid of Congress and he wants to make some pretty bold strokes before he leaves. Could this be one of them?
WOODWARD: Well, but you can't issue an executive order to make a Supreme Court justice. It has to be confirmed by the Senate. And I think if you think ahead to the fifth or sixth bounce of this, is this a fight the Democratic nominee for president is going to want? Not necessarily.
BASH: Why, Donna?
BRAZILE: Because marriage equality, immigration, affirmative action, voting rights. All of these issues hang in the balance. And I think for Democrats, like Republicans on abortion and some of the other issues, this is an issue -- this is a court that should not be staffed one way or another based on, you know, the person who just --
WOODWARD: ... the left, if you get an Obama --
BRAZILE: Well, what's wrong with that?
WOODWARD: Well, OK.
BASH: Hugh, let me -- let me bring you in here. Because let's talk --
WOODWARD: I'm talking about the neutral center here, not the left or the right.
BRAZILE: Justice Scalia and God bless his soul, condolences to his family. I mean, he was not the center on these big, weighted issues of our time.
BASH: Let's talk about the issues --
BASH: ... you're talking about. Things that are actually pending before the Supreme Court as we speak, immigration, abortion, unions, affirmative action. What is the political fallout? Never mind in the future, right now as we speak?
HEWITT: I belief that the take care clause on the immigration was still -- I thought that was a six-vote case anyway. So I think that will still go the way that constitutionalists and originalists would like, that Justice Scalia would like. And one thing Bob has said and Donna has confirmed, Justice Scalia is not just any justice. He's a giant. And even though you would never agree with him on something like employment division versus Smith which is a 1990 case but I always decried as unfortunate. He's a giant.
BASH: Thank God everybody has Google by the way.
HEWITT: Yes. It's about religious -- it's about religious freedom. And he's a giant. So it may be tough for Portman and Ayotte and for Kirk to --
BASH: The vulnerable senators.
HEWITT: The vulnerable Republican senators and Johnson to go with no hearings, no votes, lame-duck presidents don't make lifetime appointments. They may lose as a result of that. But if they allow it to go forward, they will certainly lose. And so they have a choice between (INAUDIBLE) but they have to block this nomination.
BRAZILE: Justice Scalia revered the constitution, and the constitution provided a mechanism to replace justices. And that's what the Senate should do. They should vote to hold a hearing.
BASH: Ten seconds, final word.
WOODEWARD: OK. Well, let's see if that's going to happen because I think the Republicans have the vote on this. And again, you know, what -- in the 1970s when Justice Douglas, very much of the left, retired. There was an article in "The Washington Star," the competitor to "The Washington Post", by Lyle Denniston, one of the great Supreme Court reporters of all time. And the headline was, "The Supreme Court will never be the same. Everyone, left, right, center is going to miss Justice Douglas." I think it's the same case with Scalia.
BASH: I was going to say I love ending this discussion with Bob Woodward talking about headlines from the '70s because it's kind of perfect.
WOODWARD: That's all I can do.
(LAUGHTER) BASH: Thank you. Thank you all very much for that discussion.
And as we've just been talking about, the White House is vowing to nominate a new Supreme Court justice. Who will it be? Our experts' top picks right after the break.
BASH: Welcome back to STATE OF THE UNION. I'm Dana Bash.
There is now an empty seat on the highest court in the land. President Obama has promised to fill it, but who will he pick?
Joining me now with insights into the president's thinking is David Axelrod, former senior adviser to President Obama, and our Supreme Court expert, Jeffrey Toobin, who has written several books about the court.
David, let me start with you. What is happening right now inside the White House? You have been through this process with this president.
DAVID AXELROD, FORMER SENIOR ADVISOR TO BARACK OBAMA: Well, first let us say that Aaron Sorkin could not have written this script better, dropping this right in the middle of a presidential campaign and -- but look, I think that they're going to want to move quickly because time -- you don't want this to settle in. You want to move quickly, put a nominee in front of the Senate, obviously qualified, and let them explain for the next 11 months why they want to deprive the country of a Supreme Court justice at a time when there are a lot of critical cases.
BASH: So that's what you would advise the president, put somebody forward who's obviously qualified, don't go for broke, don't go for somebody who's liberal to excite the base?
AXELROD: Well there will be those who suggest that he should pick -- I saw some names, Kamala Harris, the attorney general of California who's running for the Senate now, maybe Cory Booker --
BASH: That's a bad idea?
AXELROD: Both splendid people. I'm sure they would be great justices. But why not pick someone who's already been confirmed by the court who's on the bench and who's clearly qualified and has been rendered as up such by the Senate?
So Jeff, let's talk about some of those potential nominees. There is one who is currently sitting on the D.C. circuit court, Sri Srinivasan. He was confirmed just a couple years ago, 97-0. He has worked for President Obama, solicitor general and also under Bush. And there's another -- there's a woman who is on the 8th circuit court. And her name is Jane Kelly. She's actually reportedly pretty close with the Republican judiciary chair, Chuck Grassley, because she's got Iowa roots. What do you think of those?
JEFFREY TOOBIN, AUTHOR, THE NINE: Well that's true. And I think those two are far and away the most likely nominees by President Obama. In part because they are young by Supreme Court standards. They're both -- Jane Kelly is, I think, 51. Sri Srinivasan is 48. Both have impeccable qualifications. They are sitting serving federal judges on appellate courts. And most importantly, both were confirmed 97 to nothing.
And so the argument would be, what is it about the past two years that have made all these Republican senators suddenly decide that these people are not qualified to be on the Supreme Court?
BASH: Well let me -- let me -- let me put to you what Senator Rubio told me -- told me earlier in the program when I asked him that question because he voted for one of them. And I said that very thing. And he said, well, it's a completely different job. It should take more time and more scrutiny.
Do you buy that as somebody who knows the court the way you do?
TOOBIN: Well, the answer is the Supreme Court is a very political body just as the U.S. Senate is. The reason the Republicans don't want to vote against a Kelly or a Srinivasan or any Obama nominee, it's not because they're not qualified, it's because they're an Obama nominee.
And you know, we are -- this is the most consequential Supreme Court vacancy in a generation because the court has five conservatives and four liberals. The opportunity to switch the balance on the court to five liberals and four conservatives, that's what this fight is about. It's not about the qualifications. It's not about, you know, what time of year it is. It's about switching the balance on the Supreme Court.
BASH: Absolutely. And David, you want to say something.
AXELROD: I was interested when I heard senator -- you asked Senator Rubio about some of these potential candidates and he said, well, I don't want to comment before a nomination. I want to reserve judgment. Well, what are you reserving judgment on if you're not going to confirm anyone? So I think he got kind of caught up in the switches there.
I'm sorry, I interrupted.
BASH: No, I was just going to say, the president so far has sort of thought about history when he's making nominations.
BASH: Not only to women but the first Latina on the Supreme Court.
In your past conversations with him, is that something that is important to him and could be going forward?
AXELROD: Well, certainly he was aware of the history. He made in appointing Justice Sotomayor, the first Hispanic and first Latina on the Supreme Court. I think that he -- it's not lost on him, I'm sure, what the balance of the court is, as Jeff just noted in that this will shape judicial history for some time to come, if he were able to put someone on the court. So I think that will really frame his thinking.
And I think the candidate that he can -- that will create the starkest choice for the Senate in terms of their qualifications is the one he wants, the one who's most qualified is the one he's going to want to appoint.
BASH: David, thank you. Jeffrey Toobin -- thank you so much to both of you for your insights.
And what does it take to get two Supreme Court justices on an elephant? The surprising friendship with Justice Scalia and another person on the court who may surprise you. That's next.
BASH: Call them the odd couple. Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg forged an unlikely friendship, even vacationing together.
(BEGIN VIDEO CLIP)
SCALIA: A very nice person. She likes opera. You know, what's not to like?
Except her views of the law.
(END VIDEO CLIP)
BASH: His death leaves behind a political storm but also a singular legacy.
Here with me is his biographer, Joan Biskupic, author of "American Original, The Life And Constitution of Supreme Court Justice Antonin Scalia".
Thank you so much for coming in.
I just want to ask about the side that you saw of him that other people didn't, the (ph) little snippet (ph) up (ph) there.
JOAN BISKUPIC, AUTHOR, "AMERICAN ORIGINAL": Right. And I should mention that --
BISKUPIC: Yes. Ruth Bader Ginsburg returned the favor by saying, I love Nino but I would love to strangle him.
BASH: Perfect. It sounds like an old married couple actually.
BISKUPIC: He has a sense of fun.
BISKUPIC: He played (ph) poker --
BISKUPIC: He played poker. He would sing. He would play the piano. He -- there's a lot about his hunting but he really enjoyed hunting. And he once told me about hunting turkeys and he has talked about how cunning they were. And he said, you have to be really quiet because you only get one shot. And I always thought that sort of epitomized his time in the law too. You get just one shot and he certainly took it.
BASH: Yes, he certainly did.
You were also intrigued by Scalia's immigrant story, immigrant background.
BASH: Specifically, his father who came to the U.S. from Sicily and learned to speak English but eventually got a doctorate from Columbia.
BISKUPIC: That's right.
BASH: How did that background influence Scalia?
BISKUPIC: That's right. Very high standards. He was an only child. He was also the only child with this offspring with his -- these large Catholic families.
His father was quiet demanding. He ended up for America being the first Italian-American justice. So he felt he had a lot of demands on him. His father became the professor of romance languages. His mother was a school teacher. He was very much the apple of their eye but always felt the bar very high in the family.
BASH: So interesting and the only child who went on to have nine children.
BISKUPIC: I know. Right.
BASH: So his conservative views, is no secret, left him kind of maligned by a lot of liberals. You got an insight into how he reacted to that.
BISKUPIC: Well around the time in 2005 when Chief Justice John Roberts tapped in, it wasn't Antonin Scalia, Jon Stewart made some remark about, you know, (INAUDIBLE) who would be up for it and somebody said, well, somebody nicer than Scalia. And Jon Stewart said something to the effect, aren't they all nicer than Scalia? And Justice Scalia said to me, what's that all about? I'm a descent guy. As you said, Dana, Justice Scalia felt he had feelings too.
BASH: So he was surprised. Did he -- did he get kind of the wrap on him by the entire left of this country?
BISKUPIC: Well, I think he felt he was -- he understood that he separated himself from them on the law but he actually thought, hey, I'm a descent guy. Get to know me.
But you know, he was a bad boy on the bench but he certainly never even wrote a bad sentence. So his rhetoric was so energizing for the people on the right and I think he felt like understanding for who I am and he also thought understanding for someone who is trying to interpret the constitution the way it should be interpreted.
BASH: So interesting.
Joan Biskupic, thank you so much for your insights and going to go back and read your book again. So thank you very much.
BISKUPIC: Thank you.
BASH: And with six days to go until the next votes are cast, all six remaining Republican candidates will be right here on CNN for back to back town halls in South Carolina. Watch as they answer voters' questions with Anderson Cooper Wednesday and Thursday night at 8:00 p.m. eastern right here on CNN.
Thank you so much for spending your Sunday morning with us.
Stay tuned to CNN for continuing coverage on the story and go to CNN.com/SOTU for extras from the show today. I'm Dana Bash from Washington.
"FAREED ZAKARIA GPS" starts next.