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Legal View with Ashleigh Banfield

Selecting Scalia Replacement Discussed; Texas Debate for GOP Candidates; Recent Severe Weather Examined. Aired 12:30-1p ET

Aired February 25, 2016 - 12:30   ET

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

[12:30:02] ASHLEIGH BANFIELD, CNN ANCHOR: So when Harry Reid is saying, "I'm urging the Republicans to stop ignoring the constitution," is it really that simple? I get it. The president's job is to bring forth those nominees and then the Senate's job is to advise and consent.

But technically speaking, there's no time line in the constitution.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: There's none at all. And ...

BANFIELD: You're not ignoring the constitution if they decide they don't think it's appropriate to give a hearing.

TOOBIN: The word hearing in connection with judicial nominations does not appear in the constitution. It's a long-standing tradition. What is an even longer-standing tradition is power politics. And the Republicans recognize how important this seat is. This would be the fifth Democratic vote if President Obama gets someone through.

For the first time in two generations to have a Democratic majority on the Supreme Court, the Republicans just aren't going to do that. Now, they're inventing many reasons, they're saying it's too late. They're just not going to do it because they can run out the clock. And that is too all appearances what they're going to do. Now, the Democrats have ...

BANFIELD: They'll run out the clock, I'm not so sure. There are things such as recess appointments. This is not devoid of the potential for a recess appointment, is it?

TOOBIN: Well, it's pretty much devoid of potential, because there actually has to be a recess. And since the Republicans are in control of the Senate, there was a Supreme Court case last term about recesses, which defined recesses very narrowly. So they can keep the Senate technically in session.

BANFIELD: Yes, they can. But I don't have it in front of me, sadly, I can't quote it, but I recall just the language effectively said you can't just be sitting in your desk and doing cross word puzzles. You have to be doing official business and there has to be significance to it. Am I paraphrasing appropriately?

TOOBIN: Yes, but the Republicans know how to keep the Senate in session. It is not that hard to meet the standard that the Supreme Court ... BANFIELD: For 10 more months?

TOOBIN: Absolutely.

BANFIELD: No problem.

TOOBIN: Absolutely.

BANFIELD: Working through the summer.

TOOBIN: You can work through the summer. And also President Obama has not said he is considering a recess appointment. He wants what the senators call regular order. And this is really a political fight, which is do the Republicans feel genuine heat from their constituents? Do the vulnerable senators, Senator Ayotte in New Hampshire, Senator Johnson in Wisconsin, Toomey in Pennsylvania. Do they say to Mitch McConnell, look, you've got to hold hearings, or else we're toast. That's the only check in this process. What the constitution says doesn't matter.

BANFIELD: And they truly feel they could be toast?

TOOBIN: I don't think they do at this point. That's why they're standing.

BANFIELD: That's the point, there is a reason they are in the position they're in, because they have held true to their Republican base and that's what the base would want them still.

TOOBIN: But keep in mind, we don't have a nominee yet. If the president comes up with an extremely appealing nominee who seems reasonable, then perhaps there will be genuine heat on these Republican senators. So we're still at an early stage.

BANFIELD: OK. So Brian Sandoval aside with the politics you laid out, I mean, appearing with a pucker at a rally is maybe not the best image for a Supreme Court nominee. I'm not sure it hasn't happened before. But I keep hearing the name Sri Srinivasan and I have a feeling you probably know Sri, right?

TOOBIN: I do indeed.

BANFIELD: And is there politics there that could come back to haunt?

TOOBIN: I don't think there are any politics that are a problem for Sri Srinivasan. He's a very accomplished young judge, very standard credentials for a Supreme Court justice. He clerked for Sandra Day O'Connor. He's a judge on the D.C. Circuit, the second-most important court in the country. He was confirmed 97 to nothing, which is a ...

BANFIELD: Did he have any inkling as to whether he is also being vetted?

TOOBIN: I don't think he does at this point.

BANFIELD: Are you getting any hints from all your ... (CROSS TALK)

TOOBIN: I'm trying. But I don't have it yet. I think Sri Srinivasan, Jane Kelly on the eight circuits, Paul Watford on the ninth circuit. They are much more typical reason Supreme Court appointees rather than a sitting governor. It used to be there were politicians on the Supreme Court, but in recent decades, much less.

BANFIELD: Well, you know what? As the whispers continue to circulate around D.C., I'm going to get you back and do a big long menu. Jeffrey Toobin, thank you. Appreciate it.

Coming up next, tonight's Republican debate is most likely the most important, and critical debate yet. I know i have said that before. But as we go through this contest, it keeps becoming more true. Truly. We're just days away from Super Tuesday, and it could be a make or break time for candidates like Ted Cruz, who is hoping to catch Donald Trump before it's too late. And there is one big thing that could help him do it. It's called Texas! We'll talk strategy in a moment.

(COMMERCIAL BREAK)

[12:39:00] BANFIELD: Got some live pictures for you again, because the final Republican debate takes place tonight before Super Tuesday for these five men still standing. That's a live picture of the hall in Houston, Texas. It's going to be moderated by Wolf Blitzer at 8:30 tonight. And you can see the people getting ready, last-minute touches, all the production that's going to be underway for the big event.

But only one of these five guys will be on his home turf in Texas, which votes on Tuesday. Five days. Five days away. Ted Cruz is counting on Texas to break his streak of third-place finishes in New Hampshire and South Carolina and Nevada.

Pressure is on. But a brand-new Texas poll should give Senator Cruz a little bit of breathing room. Take a look at the numbers. Monmouth University finds 38 percent of likely Texas GOP voters support their freshman senator. And Donald Trump trails 15 points behind. And Donald Trump is essentially tied within the margin there with Marco Rubio. Cruz could take the lion's share of the Texas 155. That's 155 delegates. It is surely going to help him close what is now yawning gap, wow look at that.

[12:40:16] Ron Nehring is watching Ted Cruz's prospects with great interest, because he just happens to be Ted Cruz's campaign chairman in California, the state with the biggest delegate jackpot of all.

Ron, thanks so ch for being a part of the program today. First thing I need to ask you about is this piece of news that broke today about a congressman who is asking Ted Cruz and Marco Rubio to join forces. One of them take the top of the ticket, the other take the second place. And go against Donald Trump to try to stop the -- basically stop the momentum and the behemoth that is Donald Trump.

Is Ted Cruz anywhere close to considering that? RON NEHRING, CALIFORNIA STATE CHAIRMAN, CRUZ CAMPAIGN: That's a nice

idea but that's not what we're doing. Ted Cruz is running for president of the United States. We're going into Super Tuesday, as you described, his home state. We're at a comfortable margin, here, the polls are 15 points. We just got new polling data out today of Marco Rubio trailing in his own state of Florida by 16 points or so. That's not good news for him. It's good news for us. And so we're on to become the nominee for president of the United States and then restore some Republican leadership to the White House.

BANFIELD: That's a good point that you make. But at the same time, you cannot deny that Marco Rubio's Pacs have spent more money in the State of Texas than any other state that they have been fighting so far. And that's got to worry Ted Cruz, because home turf is not always a guarantee.

NEHRING: No, it's not a guarantee. Nothing is a guarantee in this election cycle. But you know, I was at the Harris County Republican party Lincoln dinner last night with Ted Cruz, and I've got to tell you, the thousand and so on Republican leaders who were there and activists, this is thoroughly Ted Cruz country. He's on his home turf. It's great to have this debate here in Cruz country, as well.

So very confident about Texas and also, we know that we're going to do well on Super Tuesday beyond Texas. As we move forward. Marco Rubio is a candidate with the problem. He doesn't have a pathway to victory. He doesn't have any states which he expects to win until Florida, which is bizarre. Because Florida by the time the ballots are counted in Florida, 60 percent of the delegates will already be gone. That's not a pathway to victory. We're bullish on the path that we're on. And the fact that Texas is coming up quick.

BANFIELD: Well, let me just ask you again. I'll go at this from a different angle. George Bush's supporters have resoundingly been flocking to Marco Rubio, not necessarily to Ted Cruz. And George Bush's supporters are numerous in the state of Texas, as is George Bush money -- or Jeb Bush, I beg your pardon. As is Jeb Bush's money. They're Bush country, you can't deny that. And then you have the whole Hispanic vote, too. And many of the Rubio meetings and rallies have had a heavier influence of Hispanics in their audiences than your candidate, Ted Cruz. That's got to be a concern.

NEHRING: Well, a couple things, again, the polls that just came out here in Texas reaffirm Senator Cruz's strong position in the state. So we're -- so we've got that. In terms of where Jeb Bush supporters go, the polling data we've seen, you know, pretty detailed, shows that yes, a slightly greater number of Jeb Bush supporters you know, went to Marco Rubio. But a substantial number of Jeb Bush supporters came to us. Not by decisive numbers. So that's nothing. You know, Marco Rubio cannot, you know, rest assured that this is going to, you know, change the dynamic for him. When he was asked a few days ago, where is he going to win, he didn't point to any Super Tuesday states, none of the March fifth states, nothing, until Florida.

Well, there simply are not enough delegates for him if he only starts winning then. So the question is, where can Marco Rubio win? We're going to do great in Texas. Marco Rubio is not looking good in his own State of Florida. That's a big problem for him.

BANFIELD: Well, everything is big in Texas and the stakes are too, without question, as we move toward Super Tuesday.

Ron Nehring, thank you. I look forward to talking to you again.

NEHRING: Thank you. >

BANFIELD: Don't miss the final Republican debate, folks, before Super Tuesday. Wolf blitzer, my colleague, one of the best in the business, is at the helm of it. It takes place, CNN tonight, 8:30 p.m.

And coming up next, hail and 100-mile-an-hour winds, you heard right, 100-mile-an-hour winds. Dozens of tornadoes, deadly storms, all leaving a path of destruction from the deep south all the way up to the northeast. The cleanup and the daring rescues you have to see to believe. Next.

(COMMERCIAL BREAK)

[12:48:35] BANFIELD: Fifty-two tornadoes were reported across the country just since Tuesday for the month of February. And it didn't just cost people their homes, it cost people their lives.

Seven now in total have died in just the last two days, and one of them was a 2-year-old boy living in Waverly, Virginia.

There's a state of emergency now in Virginia and counties also in Florida and Louisiana. And this morning, an incredibly close call for the United States Coast Guard off of New York's Rockaway Beach. Take a look at these images.

The coast guard boat actually nearly capsizing, trying to save some fishermen in 10 to 12 foot waves. As bad as it looks, and that is pretty darn bad for everyone on board there, they were all okay. I don't want to be that guy, though. Wow! Man, talk about the bravest.

There's the rescue right there. And you can see the size of those seas with that shot of the rescue basket coming to safe land. And there's the gentleman who was rescued.

(END VIDEO CLIP)

Four fishermen have been struggling with this kind of weather as everybody else.

Chad, I live in Connecticut which is a long way away from Virginia and where some of these tornadoes are spotted. I thought my windows are going to break last night at 9:45 at night.

This weather has been unbelievable. What's going on?

CHAD MYERS, CNN WEATHER CORRESPONDENT: All the way to Boston, about 4:00 this morning, everyone was awake in Boston. Whether your alarm clock was going or your dog was barking because the thunder was everywhere there. It started out with a big low pressure center, a big jet stream dip

that we expect in March, April or May. But it happened in February. And so the warm air ran all the way up the east coast Ashleigh, and it made two instances of severe weather, on Tuesday, in Louisiana, Mississippi, Alabama. And then for yesterday, Virginia all the way up almost to Washington, D.C.

It was very close, as storms were very close to your southern part of your viewing area, part of the city northern Virginia.

We get tornadoes all of the time. There is a tornado in America every month all of the time. In fact, we should have 29 in February on an average February. And it's not unusual to get big outbreaks, either. Super Tuesday, 2008, we had 86 tornadoes on the ground and 57 people died.

That was in a February. How did it happen? You need a big jet stream and we had one. You need warm air heading up the east coast. We had that. And you had cold air coming back down, pushing that warm air aloft. It's like pushing a hot air balloon up into the sky.

Severe weather here on Tuesday, severe weather here on Wednesday, Thursday finally moving offshore.

This severe weather will be well out to sea today. We won't have to deal with it on land, but we will have to deal with much colder air. The wind is blowing everywhere. The airports are slow and it's cold outside when you walk out there. It feels about 20 degrees colder than the thermometer, Ashleigh.

BANFIELD: Well, I think at last count I saw 28 flights -- 2,800 flights were canceled. But I think there's been more so that number may be old. So we'll keep an eye.

Chad, thank you, appreciate it.

MYERS: You're welcome.

(BEGIN VIDOE CLIP)

BANFIELD: Coming up next, you might just call this next one Goliath versus Goliath. That's the CEO of apple and he is not backing down in this. Really big sort of battle, I guess you call it, with the federal government, over cracking the code on a dead terrorist's iPhone.

Hear what Tim Cook has to say, and who is on his side on this one, next.

(COMMERCIAL BREAK)

[12:56:18] BANFIELD: The CEO of Apple says if the government forces his people to crack open a dead terrorist's iPhone, it's not just going to be bad for his company, it's going to be bad for all of us right across the country.

Tim Cook definitely not blinking yet in this stare down with the U.S. Justice Department. He's now demanding that Apple -- or they're demanding that Apple help unlock an iPhone belonging to one of the San Bernardino shooters.

Several of the world's biggest high-tech companies, Facebook and Google, they are standing by Tim Cook, and his decision to hold firm and fight back.

CNNMONEY Tech Correspondent Laurie Segall, is here to talk about this.

Before I even get to this battle, because there's just more that keeps coming out every day on it, I just think that they're in separate corners and not talking. And it turns out, oh, they're talking all right.

Apple is actually having nice meeting with the DOJ based on helping the DOJ in fighting with messaging against ISIS. And I can't quite figure out the disconnect here.

LAURIE SEGALL, CNNMONEY TECH CORRESPONDENT: It's something separate, but it's actually very interesting. They're dubbing this the "Madison Valleywood Project." And so it's about targeting anti propaganda targeting, bringing the best tech executives, advertising executives, to figure out how to counter target some of ISIS' messaging online.

And they have been talking about doing this for a while. So, now we're finally seeing that coming to fruition.

Now the irony here is this massive battle that's being fought between Apple and the FBI. And you also have Tim Cook, who's really drawn a line in the stand. They're sitting on a phone that has lots of information. They're saying we have the technology -- can build the technology to get into it, but we're not going to do it.

And he also -- in an interview last night, he spoke quite a bit about the precedent this would set if they decide this court by court. Take a listen.

(BEGIN VIDEO CLIP)

TIM COOK, CEO APPLE: There is no worse case than this case. But there may be a judge in a different district that feels that this case should apply to a divorce case.

There may be one in the next state over that thinks it should apply to tax case. If there is going to be a law, then it should be done out in the open for people, so their voices are heard through their representatives in Congress.

DAVID MUIR, ABC NEWS ANCHOR: And if Congress decided that there's this small category, this was a terrorist's iPhone-- if Congress decided that, if the American people signed off on that, we would entertain it.

COOK: No, let me be clear. At the end of the day, we have to follow the law.

(END VIDEO CLIP)

SEGALL: And, you know, what's pretty interesting here, he actually goes on to say, you know, if this were to happen, what if they asked us to bring an -- build an operating system with surveillance or with a camera?

So, you know, what could be the effect of this? And this is a classic case which we have seen multiple times of technology playing -- as a policy playing technology -- policy playing catch-up with technology, which is an interesting case here, Ashleigh.

BANFIELD: So, you know, I'm assuming that the only thing that is going to settle this is court. No one is blinking, there is not even-- as I understand it, much discussion going on.

And people are really taking sides, some with the government. And it's all about security because the FBI says this is about security, folks. And Apple says this is about security, folks.

SEGALL: It's all also about security.

BANFIELD: If we build some beautiful machine to crack an iPhone, that machine will be used against you. To crack your iPhone and maybe, I don't know, maybe your home security alarm system or whatever else.

I mean this is-- this is as dangerous as they think it can get?

SEGALL: I think that's the point here. You know, this is an unprecedented case. Because they're both saying this is about security. In the past, tech has helped law enforcement multiple times. But in this particular case, Tech is saying in order to help law enforcement, we will be making the rest of the world less secure.

So that's the point here. And I think that's what we're going to see play out in court, Ashleigh.

BANFIELD: All right. So get your law hat on, because there is going to be more conversations about this coming.

Laurie Segall, thank you. Appreciate it.

SEGALL: Thank you.

[13:00:06] BANFIELD: Thank you everyone, as well, for watching. Do appreciate it.

My colleague, Wolf Blitzer is doing the debate tonight, so Jake Tapper is going to sit in for him and he's up next.