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The Lead with Jake Tapper

Scalia Death Raises Questions over Nominating a Successor; Interview with Bob Goodlatte. Aired 4:30-5p ET

Aired February 15, 2016 - 16:30   ET

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

[16:32:20]

SCIUTTO: And breaking now: White House Press Secretary Eric Schultz just telling reporters there are -- quote -- "no exceptions for election years or when an appointment would alter the balance of the Supreme Court," and that when President Obama delivers a nominee to replace Justice Antonin Scalia, he expects the Senate to fulfill its constitutional duty.

Welcome back to THE LEAD. I'm Jim Sciutto, in today for Jake Tapper.

Scalia died on Saturday night in his sleep. And the conservative titan's passing has put the high court in a partisan stalemate, four- liberal leaning justices and four conservative-leaning justices. And it also puts the future of this country for the next 20 or 30 years at least in legal limbo.

The White House intends to answer that giant question mark in the final 10 months of President Obama's tenure as commander in chief, while Republicans are vowing to force the president to leave the nomination of the next Supreme Court justice until the next president assumes office.

CNN is covering all the angles in what has quickly become the biggest battle in the war for the White House.

Manu joining me now, Manu Raju, covering this on the Hill.

You have been speaking to people on the Hill. Of course, the big question -- and it's early -- it's only 48 hours into this. Are you hearing anything new about openness there to the president pushing a nominee forward?

MANU RAJU, CNN SENIOR POLITICAL CORRESPONDENT: Sort answer, no, Jim.

SCIUTTO: All resistance.

RAJU: All resistance.

But it is sort of conceptual right now, because we don't actually have a nominee yet, so we will see how the Republican rhetoric shifts, assuming that the White House issues a nominee who could potentially win some Republican support.

Now, I had a number of conversations with Republican senators today, two of whom are on the Judiciary Committee, Lindsey Graham of South Carolina, Orrin Hatch of Utah. Both of them believe the president should wait until next year, like Senate Majority Leader Mitch McConnell, but neither of them fully ruled out supporting anybody, but they also made it very clear it would be very hard to support any sort of nominee.

Now, Lindsey Graham, he backed Elena Kagan, Sonia Sotomayor, but he said it would be very difficult for him to support this year. He cites the changing of filibuster rules which poisoned the well and obviously election year politics.

SCIUTTO: The nuclear option.

RAJU: And he says probably the only consensus nominee right now is Orrin Hatch. So I don't think Orrin Hatch is going to get the nomination any time soon.

SCIUTTO: A lot of focus, a lot of attention has been focused on Republican senators who are running in blue states, particularly states won twice by President Obama, but you have already have some of them coming out now saying that they don't want a nominee.

RAJU: That's right. It's been sort of an interesting development over the past day.

Pat Toomey of Pennsylvania in a very difficult race, Kelly Ayotte of New Hampshire also in a difficult race, and Ron Johnson of Wisconsin, all three of them have said we should wait until next year.

[16:35:02]

Now, I should caution they're not saying we should not have a vote whatsoever, we should not have hearings whatsoever. They're not saying we're definitely going to oppose no matter who is -- who is proposed, which all goes to the basic point that Senate Democrats who I have talked to really want the White House to nominate a consensus nominee or someone who could get some Republican support to put them in a difficult spot.

Harry Reid, the senator minority leader, I was told, talked to the White House and said we should get a nominee who would sort of make Republicans squirm, put them in a difficult political position.

SCIUTTO: So it's not an easy no vote.

RAJU: So it's not an easy no vote.

SCIUTTO: OK. We have already heard Senators Rubio and Cruz say President Obama should not get the chance to nominate Scalia's replacement.

So, this is clearly coming into the presidential race, as we well know. Cruz vowed to filibuster a nomination to the Senate floor, but Cruz is also using a Supreme Court vacancy to attack one of his rivals. Tell us how this is going to play out as the race goes forward. RAJU: We already sort of saw that play out even on Saturday night,

Saturday night's debate, going back and forth, right after -- in the aftermath of Scalia's death.

(CROSSTALK)

SCIUTTO: Senator Kasich was the only one who said, listen, he's just passed away. Let's take a moment.

RAJU: Yes, but Trump even said to Cruz, said, look, you supported John Roberts. You pushed John Roberts. Of course, John Roberts upheld the individual mandate, and Cruz turning around saying you're going to support liberal justices.

This makes the issue so real in the presidential race, so just we will see how these how voters react now that this will actually have a major impact.

SCIUTTO: Could you have picked a more divisive issue to inject into an already divisive election?

RAJU: Right.

SCIUTTO: Manu Raju, thanks very much.

We have heard the arguments from both sides, so what will we have first, a new president or a ninth Supreme Court justice? We will ask the House Judiciary chairman if there is room for compromise.

That's right after this break.

(COMMERCIAL BREAK)

[16:41:07]

SCIUTTO: Welcome back to THE LEAD.

The political universe fighting over the most coveted appointment in the United States, a Supreme Court seat. Justice Antonin Scalia's unexpected passing has now shoved the court into the middle of the 2016 election and put the spotlight back on the most bitter and broken relationship in the country, the president's relationship with congressional Republicans.

Joining me now to talk about the coming nomination fight, one of them, chairman of the House Judiciary Committee, Republican Congressman from Virginia Bob Goodlatte.

Congressman, thank you for joining us today.

REP. BOB GOODLATTE (R), VIRGINIA: Good to be with you, Jim.

SCIUTTO: So, a few things to talk here in -- related to the Supreme Court.

To prevent a floor vote on this nomination, you would have to have Senators Grassley and McConnell hold out for a year, in effect, and have a vacancy on the court for longer than a year.

Now, there are conservative Republicans who say that congressional Republicans have given in, in the past, that they have broken ranks. Do you see -- do you think that the Republican Party on the Hill has the backbone to stand firm on this and not allow a vote?

GOODLATTE: Well, first of all, Jim, it's highly unusual to have a Supreme Court confirmation in a presidential election year.

So, I side with those who believe that this is an excellent addition to the great debate about what the next Supreme Court justice should stand for, and, therefore, including that in the presidential election I think is far better than letting a lame-duck president make a nomination that is going to clearly tilt the court in a direction away from where Justice Scalia, who was a lion of the court for 30 years, a strong advocate for originalism, for limiting the role of the court in terms of judicial activism.

And so I don't think you will see that happen. But the last time it happened was 1940, by the way. But then, as in almost every other presidential year nomination, the justice was appointed and then confirmed by a party of the same party as the president. When you have a divided party, this is unheard of.

SCIUTTO: Well, let me ask you, can Senate Republicans hold out this long, in effect?

GOODLATTE: Well, I think if they make it very clear that the people of the country should be making this decision through the presidential election process, then I think they will not only be able to hold out, as you put it, but go through the process in a way that makes it very clear that they think that ultimately this...

(CROSSTALK)

SCIUTTO: Can I play devil's advocate just on that point?

GOODLATTE: Sure.

SCIUTTO: Didn't the people of the country already voice support by electing the president twice?

GOODLATTE: Sure.

SCIUTTO: I know it's late in his term, but it's not like he came out of nowhere. Right?

GOODLATTE: It's very late in his term. And I think that, given the stakes and given the clear direction that we have heard from a number of Republican senators already, I think that what we're going to see is this be a major issue in the presidential election campaign.

SCIUTTO: Now, is there -- there have been some names floating of relatively moderate judges that were approved by Republicans on the Hill, often unanimously. Sri Srinivasan is a name that has been thrown out there. Do you think there is a Goldilocks, as it were, candidate, nominee that the president could make that could attract Republican support?

GOODLATTE: Well, when you get late in a presidential term, I think it's already clear that circuit court judges, that vacancies that come up, they're not likely to be filled until a new president is selected as well.

But when you're talking about the fifth vote in a 4-4 split court now, I think it's highly unlikely that this is going to go by the boards with a candidate. However, having said that, I'm sure that the Senate will want to see who the president nominates and consider that. He could surprise all of us.

But I would be very surprised...

SCIUTTO: It sounds like you have an open mind there...

(CROSSTALK)

GOODLATTE: I would be very -- I would be very surprised if he nominates somebody that I -- and the House doesn't get any say in this, by the way -- that I or any of these senators would find to be an effective replacement for Justice Scalia.

[16:45:03] SCIUTTO: Final question.

Are you worried at all about a backlash from voters for Republican lawmakers just not even allowing a vote on this and keeping a seat in the highest court empty for really more than a year because you're getting into the next presidency and the process that it would take for the next president to pick someone in vet (ph)?

GOODLATTE: That is a process for handling cases. If the case is a 4- 4 split and those, by the way, in many cases, will not be a 4-4 split.

But if it is a 4-4 split, then the holding in the circuit court below will be upheld. If it's a 4-4 split and, you know, Justice Scalia might have over turned that with the fifth vote, that's going to be upheld as well.

The justice also have a mechanism to delay consideration cases until the next term of the Supreme Court in which there would still be time for a new president to appoint and get confirmed by the Senate, a new justice that could take care of some of the toughest cases.

SCIUTTO: Congressman Goodlatte, thanks for walking us through this.

GOODLATTE: Thanks.

SCIUTTO: I appreciate having you on.

So, whom could the President pick, if possible, to satisfy both sides? Is there a wild card out there we haven't discussed? Our Supreme Court experts will weigh in, after this break.

(COMMERCIAL BREAK)

[16:50:11] SCIUTTO: Welcome back to The Lead. We continue with our politics lead. Joining me now to discuss the laws of Scalia, the fallout from his death and the high-stakes debts that is the nomination process to the Supreme Court, CNN Senior Legal Analyst Jeffrey Toobin and Shannen Coffin who was counsel to Vice President Dick Cheney.

Jeff, if I could start to you, Republicans determined not to allow vote on the Supreme Court nominee. Is that possibly a reason for a judge who President Obama might nominate to say, "Listen, that's a battle I don't want to go through. I'll wait for the next president."

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Not at all, out of the question. You know, that President Obama is not going to give up one of the key responsibilities that a president has, which is to nominate individuals to the Supreme Court.

Now, the Senate has a constitutional obligation to advice and consent, to vote up or down. But a president is not going to unilaterally disarm because he might lose a fight. There's -- this is something that the President going to do and if the Republicans are going to stop him, they're going to stop him, but he's not going to stop himself.

SCIUTTO: Shannen, there's a lot of speculation that -- and we're only 48 hours and there'll be a lot more, right? And the President still has to make a move, he's going to wait until after the Senate recess (ph).

Looking at the landscape, is there a candidate, a Goldilocks candidate that the president nominee could choose to get enough Republican votes to get through?

SHANNEN COFFIN, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: I'm not sure we can gain that out at this point, I mean, the battle lines have sort of been drawing on the hill. And the President is going to have to make a decision as to whether A, he wants to have a good old- fashioned confirmation battle or he wants to have an electoral battle, right?

SCIUTTO: Make a point, right.

COFFIN: That's right. So, he may go with -- he may try to go with someone that he views is confirmable. He may try to -- he may try to simply make the point for November. And the beauty of that is, is it's kind of -- that's kind of the system that our founders had in mind when they divided these ...

TOOBIN: Wait a second.

SCIUTTO: Jeff, I hear you wanted to pop in.

TOOBIN: I don't understand that -- I don't understand that at all. What does it mean to have an electoral -- I mean, when you have Republican saying, they will not consider anyone no matter who it is, what does it mean to pick a confirmable choice?

COFFIN: Well, look, I mean, Jeff, you -- we've been -- there's been a lot of talk in the media about people that have been, you know, confirmed by high counts and to lower courts. So, you know, there's some conventional wisdom out there that those were the sorts of nominees that the President might go with, but he might not go with that sort of nominee at all.

TOOBIN: And you think that if he picks a Sri Srinivasan or a Jane Kelly, both of whom were confirmed unanimously, you think those people might have a chance in the current setups (ph)?

COFFIN: Look, the point about those sorts of nominees is the very point that you would -- that we can make with respect to Elena Kagan, who was -- who was pitched as a moderate. And, you know, the setup to this very piece has said that we have a -- that a very solid for vote block on the liberal side of the court, that's because Elena Kagan has not been a moderate. She has voted lockstep with the other liberals on the court.

SCIUTTO: Jeff, let me ask you that question because I know you feel stronger here and this is in the concierge (ph), the President's right to nominate here practically, knowing the division right now, do you see that a Sri Srinivasan, you mentioned a couple of candidates there who did that unanimous support, but again, this is Supreme Court justice, it's a different -- it's a different level.

Do you see a candidate who could get -- who could peel enough Republican votes away to get confirmation?

TOOBIN: The Goldilocks candidate ...

SCIUTTO: Right.

TOOBIN: ... which you're referring to.

SCIUTTO: Yes.

TOOBIN: Absolutely not. I don't think such a person exists. I think the Republican Party is dug in on a position that Barack Obama is not going to fill the seat with Goldilocks or anyone else. And, I think that's the end of the story.

I just -- you know, these seats are too important to the base of the Republican Party to let Barack Obama fill it in the last year of his presidency when they have the chance to run out the clock. So, I think it's interesting who President Obama is going to nominate. But, the idea that this person will ascend to the bench of the Supreme Court before Barack Obama leaves office seems just fanciful.

COFFIN: And, Jeff, I'm not sure but I don't think we disagree on that at all. My point was simply, you know, there's a political calculation going on in the White House and that's going to determine who the nominee is, but it probably isn't going to change the result.

SCIUTTO: But to be fair, the political calculation is I'm sure going on both sides at this point.

[16:55:02] Shannen Coffin, Jeffrey Toobin, thanks you very much.

Former Governor Eliot Spitzer is facing another scandal. The former client number nine now investigated over the choking, alleged choking, of a woman in a fancy New York City hotel room. But that's not the most bizarre part of the story.

We'll have more after this break.

(COMMERCIAL BREAK)

SCIUTTO: There was new information about the allegations that former New York Governor Eliot Spitzer choked a woman in a hotel room.

Now, a senior law enforcement official says that Spitzer used the name George when we visited the woman in the hospital afterwards. The law enforcement official also now says that the woman's cellphone appears to have some information that was wiped from it remotely. Police are now examining that phone.

Spitzer's spokesperson denies the claims.

That's it for "THE LEAD" today. I'm Jim Sciutto, in today for Jake Tapper. And I turn you over right now to the very capable hands of Wolf Blitzer. He's right next door, in THE SITUATION ROOM.