Return to Transcripts main page

CNN Newsroom

President Barack Obama and the First Lady Paid Their Respects To Justice Antonin Scalia; South Carolina Governor Nikki Haley to Endorse Marco Rubio. Aired 3:30-4p ET

Aired February 19, 2016 - 15:30   ET

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

[15:30:00] JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It is going to be very weird, frankly, to be in that courtroom on Monday without chief justice, without Justice Scalia there. You know, I have been going to Supreme Court arguments for well more than 20 years and I have never been to a Supreme Court argument where Antonin Scalia was not a participant and usually the loudest and most vociferous participant.

POPPY HARLOW, CNN HOST: Well, exactly. That is what I was going to ask you is just sort of about how he changed the oral argument process, and how much that evolved under him.

TOOBIN: You know, that is a big, big change that happened at the Supreme Court. In the 1980s, it was a very quiet bench. You had chief justice Warren Burger. You had justices like Thurgood Marshall, like Harry Blackman, like William Brennan, who very rarely asks questions, not like Clarence Thomas today who never ask question but they never - but they really were very reticent to get involved in oral argument.

Justice Scalia, the former law professor at Chicago and Virginia, he gets on the bench in 1986 and suddenly he is this complete live wire. He was asking these questions. Throwing hypothetical questions at the lawyers, asking, you know, expressing incredulity at some of the answers. That simply was not done. But he single-handedly transformed the bench.

And today, you have eight justices, all except Justice Thomas, who are all active participants in oral argument. And frankly, it is a much more entertaining lively bench than it used to be, and that's because Justice Scalia really single-handedly changed the whole dynamic of oral arguments at the court.

HARLOW: You know, some -- Jeffrey and Douglas Brinkley, rarely do we see a sitting justice do any sort of interview. But Scalia did an interview back in 2012 with then CNN host Piers Morgan. He was talking about a book that he had just written. And there were some personal moments that came through that moments that you don't ever really see with a sitting justice. So let's play one of those.

(BEGIN VIDEOTAPE)

PIERS MORGAN, FORMER CNN ANCHOR: Have you ever broken a law, Justice Scalia? JUSTICE ANTONIN SCALIA, U.S. SUPREME COURT: Have I ever broken the

law?

MORGAN: Yes.

SCALIA: I have exceeded the speed limit on occasion.

MORGAN: Ever been caught?

SCALIA: Yes, I've gotten tickets. None recently.

MORGAN: That's it, that's the only criminal action in your life?

SCALIA: Yes. I am pretty much a law-abiding sort.

MORGAN: I like the phrase "pretty much," gives me somewhere to go.

SCALIA: I'm a law-abiding sort.

MORGAN: What is your guilty pleasure?

SCALIA: My guilty pleasure?

MORGAN: Yes.

SCALIA: I don't have any guilty pleasures. How can it be pleasurable if it's guilty?

MORGAN: I have lots of guilty pleasures.

SCALIA: No, you don't.

MORGAN: No, I do, everyone does. Nothing you get up to that you probably wouldn't want to read about?

SCALIA: That you think I shouldn't do? Smoking?

(END VIDEOTAPE)

HARLOW: There you have it. Just one of those very unique moments.

You know, Douglas Brinkley, also I should note that I was reading some people had left apple sauce as an honor to him in the great hall today because of what he wrote in his dissenting opinion on the Obamacare decision.

DOUGLAS BRINKLEY, CNN POLITICAL COMMENTATOR: Well, that's right. In that clip you just played is vintage Scalia. I mean, there - you say a swordsman with words. I mean, how would you like to debate him? Now, he will put you in a corner before you know what even happened.

HARLOW: I wouldn't. Right.

BRINKLEY: I know. And I think one of the reasons this public outpouring of really love for justice Scalia's happening is because he seemed to be not only brilliant but a boy scout when he was a kid. The boy scouts meant everything to him. And he was kind of a squeaky clean guy and that no really, you know, he passed by 98 to nothing vote. You know, when he was up to become justice. So there are very few people that don't realize what a brilliant and unusual and great American this was. When chief justice Rehnquist died in 2005, I remember it and I remember how we covered it, but this is something different. The lines today of, you know, thousands of people coming and this sort of public mourning. And I realize he's also an icon of the conservative movement. And many of the people that are remembering him are really pleased at the way he's been able to push originalism through and win so many conservative cases in recent years. Never won enough for justice Scalia but he won quite a few.

HARLOW: So Jeffrey, let's talk about that, the concept of originalism. Because as you and I were covering that breaking news on Saturday, that was really key in all of it as you look at his legacy as a justice.

TOOBIN: Right. I mean, there are really two major opposing schools of thought in how you interpret the constitution.

[15:35:02] HARLOW: Sure.

TOOBIN: The school of thought called originalism, with Justice Scalia and Justice Clarence Thomas are very much associated with is the idea that says, look, the constitution was set in stone in the late 18th century and the meanings of the words should be understood precisely as the authors of the constitution understood them in the 18th century. Thus, they say, the authors of the constitution weren't thinking about abortion rights. They weren't thinking about gay rights. So we do not recognize abortion rights or gay rights.

The alternative theory is known as the living constitution, which says the constitution set down general principles that have to be evaluated in the context of today. Not by the, you know, dead hand of the 18th century. And if we have come to recognize that gay people can't be denied due process of law or equal protection of the law, the constitution protects their right to get married like everyone else.

That is an argument that is very much still ongoing. Even some conservatives like chief justice Roberts, they are conservative. They usually vote with Justice Scalia. But they don't necessarily embrace the full philosophy of originalism the way Justice Scalia and Justice Thomas did.

So, you know, these battles are not decided yet. And that's why one of the many reasons why this confirmation fight that we are about to see is so important, because, you know, even though the constitution has been around for well more than 200 years, the meaning of it is not at all settled. And it's decided starting on the first Monday of October every year at the Supreme Court.

HARLOW: And absolutely is. Stay with me. Jeffrey Toobin, also Douglas Brinkley.

I do want to go back to Michelle Kosinski who is live for us at the White House. Because Michelle, I'm interested to hear, and I'm sure viewers want to

know a little bit more about the fact that Joe Biden and Dr. Jill Biden are going tomorrow. They are closer to the Scalia family than the president, even though ideologically they may be separated by an ocean.

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Right. I mean, Joe Biden has been in the Washington scene for such a long time. It's no surprise there. But there is couple of days ago, the White House was really hesitant to get into the decision making of why president wasn't attending the funeral tomorrow. And they clearly seemed to not want to get into the political statement that some were surely going to make out of his attendance or not. You know, let's say he was going to attend. Sort of how that would change the tone of the event potentially. I thank likely went into the White House thinking. But if President Obama and Scalia had had a relationship, a long-standing or deep relationship here in D.C., I think it might have been different.

But what the White House had said on this decision making is the president finds it important to pays his respect. They found that the appropriate time to do that was today with the first lady. Again, they're going to be there any minute.

HARLOW: And Michelle, I'm just going to jump in, Michelle, because we're watching President Obama and the first lady paying their respects. Let's listen.

(PRESIDENT OBAMA AND THE FIRST LADY PAYING THEIR RESPECT TO JUSTICE ANTONIN SCALIA)

[15:40:40] HARLOW: And there you have it, President Obama and the first lady paying their respects to Justice Antonin Scalia who is lying in repose today, a day ahead of his funeral, that is tomorrow morning, a day of mourning. As so many have walked past this casket paying their respects to a man who served in our nation's highest court for 30 years. The first Italian-American ever to sit on the high court.

Jeffrey Toobin, to you. This moment, today, and, frankly, tomorrow, not about the politics, about the man and his service to this country.

TOOBIN: No. And I, you know, was fortunate to be in that, pay my own respects earlier today. And you saw the president and the first lady starring at the portrait by Nelson Shang (ph). It is beautiful portrait in the collection of Harvard law school where the president and first lady both graduated.

And that is a wonderfully symbolic portrait too because there is, you know, with Justice Scalia, there is in the background in the portrait there, St. Thomas Moore, the patron saint of lawyers. His hand rests on the dictionary and the federalist papers. And there is a photograph, a painting, in the photograph of his wife Maureen at their wedding. So it's a beautifully evocative portrait of what meant most to Justice Scalia. And I'm glad the president and first lady had a chance to study it and enjoy it because it's a terrific piece. HARLOW: We're about to see that portrait, Jeffrey, as they turn the

corner here so people can see more of what you're talking about. What also stood out to me is he has got a bit of a smile, right, and it's not what you might expect for the portrait of a Supreme Court justice. His robe is undone. He is sitting there sort of relaxed. It's more the human side than what we see on the bench.

TOOBIN: Well, I have to say, I guess, you know, that's the good thing about a piece of art, it's in the eyes of the beholder. My view of that portrait is he sort of looks like he is getting ready to pounce, which is a very characteristic position that he took on the bench. He sort of the leaning forward, getting ready to ask a tough question. And he has got a kind of a half smile on his face which says, I got you which is - which again, was very characteristic of the way Justice Scalia behaved both on and off the bench.

HARLOW: Jeffrey, we had on with us earlier this week some of his former law clerks. A good friend of yours, someone who was also a clerk of his. And the way that they spoke about him as a teacher. Take me back to that.

TOOBIN: Well, and just -- I should mention that I'm sure our viewers saw there are four people surrounding the casket. There's the live picture. Those are a rotating cast for a half hour each of Justice Scalia's law clerks. And the court will be open to visitors until 8:00 tonight, but that honor guard of clerks will be there in a rotating way all night long, which is a wonderful Supreme Court tradition. And they will be there with the justice's casket until it's taken to church tomorrow for the funeral mass.

The thing about Supreme Court law clerkships, which I did not have, is that it is this very intense relationship for the highest stakes and you can't talk about it with anyone except each other. So the bond is so intense. Because think about it. I mean, think about the magnitude of these questions, you know, is Obamacare constitutional, is there a right to marriage in all 50 states? Those were both cases decided last year.

For months, the only people who know how those cases are decided are the law clerks and their -- and the justices and a very small staff of secretaries in each chambers. So imagine holding a secret together. Imagine writing those live changing, world changing opinions. That's a collaborative enterprise and a teaching enterprise that establishes a bond between law clerks and justices that is really lifelong.

Think about also law clerks tend to be in their late 20s. They go to law school for three years after college. They clerk usually on a lower court and then they clerk on the Supreme Court. So they are -- usually in their late 20s when they are a Supreme Court clerkship.

He has been on the court for 30 years. Some of these law clerks are pushing 60 years old. So they have spent their whole lives in the shadow of Justice Scalia, their whole professional lives. And you know, he has remained close to them for all that time. So that bond you can see -- they're switching places now.

[15:45:56] HARLOW: HARLOW: They're switching places now, exactly.

And Jeffrey - go ahead, Jeffrey.

TOOBIN: No. I was just going to say that bond is something that endures for a lifetime.

HARLOW: Right.

Before I get a break in here, in a word, Jeffrey Toobin, his legacy.

TOOBIN: Big and controversial. Not many Supreme Court justices are associated with an entire school of constitutional interpretation. You know, only a handful. So I gave you two. I'm a lawyer so more words rather than fewer.

HARLOW: Jeffrey Toobin, thank you so much. Douglas Brinkley, thank you. Stay with me. We're going to take a quick break. Much more on this in a moment.

(COMMERCIAL BREAK)

[15:51:01] HARLOW: Welcome back. I'm Poppy Harlow in for Brooke Baldwin.

Today they call it the firewall state for good reason. South Carolina, this time tomorrow voters in this critical primary state will be casting their ballots in the Republican primary. And since 1980, this state's results, well, they have been nearly perfect in terms of who will be the Republican nominee every single time except 2012 when Newt Gingrich won the state.

Joining me now is Victor Blackwell who's in Columbia, South Carolina.

Look. Rubio down there off this high, if you will, of getting the endorsement of the very popular, 80 percent approval rating governor, Nikki Haley. What are the voters saying down there about it?

VICTOR BLACKWELL, CNN CORRESPONDENT: Well, that endorsement certainly is resonating. And I will let you hear from a newly decided Rubio supporter. He actually decided this morning. You will hear from him in just a moment.

But there are still a lot of voters here who are either undecided or still can be persuaded. Some of the GOP insiders here in the state put that number at possibly 50 percent or more who will make their decision in just the next 24 hours.

I want you to listen to a few of the people I spoke with this morning and this afternoon.

(BEGIN VIDEOTAPE)

BLACKWELL: Who's your pick and how did they seal the deal?

BILL ADAMS, COUTH CAROLINA VOTER: Well, Marco Rubio. He came on board with Tim Scott, senator Scott, Nikki Haley of course has endorsed him, and so that's a powerful message because I believe that just that visual even because that really is the future of the Republican party.

BRYAN TRULLUCK, SOUTH CAROLINA VOTER: I'm leaning towards Rubio.

BLACKWELL: OK, why?

TRULLUCK: I think that of all of the candidates that we've listened to, that for me he's been the most direct and the most truthful.

BLACKWELL: Do you think Marco Rubio can win South Carolina?

TRULLUCK: No.

BLACKWELL: Who do you expect will win South Carolina?

TRULLUCK: Trump.

BLACKWELL: And how do you feel about that?

TRULLUCK: I think the American people have turned into -- they're less savvy -- the more news they receive, the less savvy they become.

RICHARD BURTS, INDEPENDENT SOUTH CAROLINA VOTER: It's an interesting year. I've never, you know, in all the years, I don't think I have had this much of an issue trying to come up with someone who support. I think it will probably come down to, you know, when I get there and whatever my heart is telling me to go at the time.

(END VIDEOTAPE)

BLACKWELL: I've spoken with some first-time voters here on the University of South Carolina campus, some older voters as you saw, and of the voters who said they were either leaning towards a candidate or had decided on a candidate, every one of them said that candidate is Marco Rubio. Now, that is not scientific, but it seems that there is some momentum here, at least in and around the University of South Carolina in Columbia, Poppy.

HARLOW: No question. You'll be there live tomorrow morning anchoring "NEW DAY."

Victor Blackwell, thank you very much, my friend.

We are going to take a quick break. Much more when we come back on the president and first lady just moments ago paying their respects to the late justice Antonin Scalia. Stay with us.

(COMMERCIAL BREAK)

[15:58:27] HARLOW: All right. In the final moments of the show, I want to bring Jeffrey Toobin back in, CNN senior legal analyst and also an expert on the court just to talk about what we're witnessing, live images here of people coming, Jeffrey, to pay their respects to the late justice Antonin Scalia ahead of his funeral tomorrow. Truly the intersection of the justice the man and the justice the judge and all the politics that go with it as we remember his life and his legacy, Jeffrey.

TOOBIN: You know, I was privileged to be able to pay my own respects and it really is a moment where the personal and the political are very much on display. Antonin Scalia worked at the Supreme Court for 30 years and it's a workplace. There are people there he knew for decades. It's a small operation. There are only a couple hundred people work there. And you know, there are people who just miss the man very much and you feel that in the building.

At the same time, we are at the beginning of a major constitutional struggle. The court is evenly divided along ideological grounds, and his seat is going to determine the future of the court for some time to come. So I was struck by the intersection of the personal and the political today. And I'm sure that will be true tomorrow at his funeral as well.

HARLOW: No question. Today, though, and tomorrow really about the man and his legacy.

Jeffrey Toobin, thank you so much. Again, Justice Scalia's funeral is set for tomorrow. My colleagues Wolf Blitzer, Jake Tapper will be on hand for this historic event. You can see it all live at 10:00 a.m. right here on CNN.

Thank you so much being with me today. "The LEAD" with Jake Tappers begins right now.