Return to Transcripts main page


Did Dems Filibuster on Gorsuch Backfire?; Advertisers Flee O'Reilly Over Sex Harassment Claims. Aired 9:30-10a ET

Aired April 8, 2017 - 09:30   ET


[09:30:00] MICHAEL SMERCONISH, CNN ANCHOR: First of all, the conservative Gorsuch now replaces the conservative Scalia, so the balance of power on the court is not going to shift. It will still be 4-4 with Justice Anthony Kennedy casting the deciding vote.

As the rules stood, supporters of a Supreme Court nominee needed 60 votes to confirm a nominee by first shutting down the filibuster. This filibuster, it really wasn't about Judge Gorsuch but about President Obama's nominee Merrick Garland and the way he was treated by the Republicans who wouldn't give him a hearing, much less a vote. And I get, the idea that a president with a year left in office cannot nominate a Supreme Court justice, that's unprecedented and obstructionist.

But Democrats fired and wasted the last weapon in their arsenal and here's why -- because where this time the Republicans didn't have the 60 votes they needed to shut down the filibuster, they changed the rules, as Mitch McConnell said that they would. The so-called nuclear option was invoked and the filibuster and thus the nomination only required a simple majority.

But looking forward, remember this: Justice Ruth Bader Ginsburg is 84 years old. Justice Breyer is 78. Justice Kennedy is 80 and I hope they each live to 150.

But should any of their seats require filling on the watch of President Trump, he'll get to replace a liberal or a moderate with a conservative, and that's when the balance of power in the Supreme Court is really going to shift. If the Democrats had ended the Gorsuch filibuster without forcing the nuclear option, that issue would be preserved for the next vacancy when it really might matter, and there would have been much more public interest and outcry when the outcome of cases like Roe v. Wade could hang in the balance.

My point is, I think it was far easier for the Republicans to change the rules when it's just judge Gorsuch replacing Scalia than it would be in the future when the balance of power is up for grabs. President Trump might have chosen a more moderate justice just to get that person through the approval process. The Democrats made their point about Merrick Garland, then they overplayed a losing hand that could last until they regain control of the Senate, whenever that might be.

Here to discuss, former three-term Republican senator from the great state of Wyoming, Alan Simpson, who served on the Judiciary Committee during his 18 years in the Senate. Senator, what do you make of my thesis that the D's overplayed their


ALAN SIMPSON (R),FORMER WYOMING SENATOR: I think I give you an "A", I would give you an "A". No question, as an old professor.

Let me tell you, you described it well. But let me tell you, it really isn't a nuclear option. It's a special belch option. They never used that before. Look at Clarence Thomas. He was confirmed by a vote of 52-48. We never heard of a filibuster.

I, in my 18 years, put seven of the nine men and women on the court. I didn't care what party they were in or their ideological efforts. It was, are they good lawyers, do they have a judicial temperament, are they smart? And I voted for seven of the nine before I left the shop down there.

This is madness. And guess what? Talk about what's that wonderful phrase, hoist on his own petard, which means blown up by your own bomb, and that's Schumer. When he -- he's a good egg. He's a good legislator. He legislates well. I worked with him and I liked him.

But when he got into the leadership, he somehow got twisted up with the Elizabeth Warren wing and you don't want to get over there too far, and he's being pushed, pushed, pushed. He's not good at this. And guess what, when he came to the Senate he had the brilliant idea to say, look, let's start filibustering lower court judges. He tried that and he failed.

And now, he must have been sitting there like he had swallowed a hockey puck watching this thing happen to him, and it will happen again. You have described it so well. It isn't just this one.

And he made the effort, he said let's take him out of there and get another one here, we'll all work together. I thought, oh, that's rich. They wouldn't have taken anyone. The gut hard stuff --


SMERCONISH: I remember --


Go ahead.

SMERCONISH: Senator, I remember when you were able to work, even though ideologically you were at polar option, I remember when you were able to work with Senator Ted Kennedy.

Here's my question, two-parter. When did it all go to hell in a hand basket, and how do we get back civility?

SIMPSON: It went to hell in a hand basket when the people who had been in the House, legislators in the House, had been under control of one party for 40 years. In that situation, even the slaves get tired of the masters and the masters get tired of beating the slaves and it was a terrible situation.

[09:35:02] Republicans were always viciously opposing whoever was in the leadership of the House. So, they said I'm going to get the hell out of here, I'm going to go to the Senate. And they brought the venom to the Senate.

I could name both party people, parties who came to the Senate and said, now, we're over here where we can take on the Republicans or the Democrats, and it began to disassemble.

And the coin of the realm there is trust. Trust not just with the opposition party but in your own party. Now, the coin is severely tarnished. There is no trust. There's no trust within parties. There's no trust across the aisle.

Ted Kennedy was a great guy in my mind. I didn't judge his lifestyle. I don't give a damn about that. I'm not into that game. There's a bigger judge in that somewhere in the world, in the cosmos.

All I cared about was when he shook my hand and said, look, I'm with you or I'm against you, and he never broke his word once with me.

To me, it didn't matter. All the rest of it meant nothing to me. Keep your word, and he did. We had a lot of fun together too.

SMERCONISH: I want to show you something before you go. I want to share with you, Senator Simpson, a tweet from your fellow retired senator, 93-year-old Robert Dole. I don't know if you're into Twitter, but put up on the screen and let me read to the senator.

He says, "It's official. Ray Chavez has agreed to be my 2024 running mate. This U.S. hero is the oldest survivor member of Pearl Harbor and 105 year strong."

I can get behind that Republican ticket, Dole/Chavez in 2024. How about you?

SIMPSON: Let me tell you, I was Bob Dole's assistant for ten years. I said you don't have to worry about any footprints coming up behind you, you're the captain, I'm the lieutenant. I had been in the service too, in the infantry.

It was the most glorious time of my life, serving ten years as his assistant. Maybe I could be a Supreme Court appointment under that new administration. Of course, we do have our age challenges.


SMERCONISH: Thank you, Senator Simpson. It's a privilege to have you back on the program.

SIMPSON: It's nice to hear you. You bet.

SMERCONISH: Thank you, sir.

By the way, did anybody else notice that the tweet from dole said 2024? It didn't say 2020. Ever the Republican, I guess it's -- yeah, put it back up, Catherine. Check that out, right? So what's he really saying?

I think he's saying that President Trump gets re-elected in 2020, so it will be until 2024 that Bob Dole will run with Ray Chavez and with Alan Simpson as their Supreme Court pick.

Anyway, keep tweeting me @Smerconish.

Still to come, after FOX News settled five sexual harassment cases -- I should say, FOX News and Bill O'Reilly -- against Bill O'Reilly, a new campaign is scaring off advertisers. But is it fixing a problem or setting a bad precedent about controversial content?


[09:42:17] SMERCONISH: The allegations of sexual harassment at FOX News that took town chief Roger Ailes are now threatening the tenure of the network's star anchor, Bill O'Reilly, but could that outcome also prove troubling? This week came reports that suits about O'Reilly's behavior have been settled for a total of at least $13 million.

Media Matters, an organization that previously worked on successful attack campaigns against radio hosts Glenn Beck and Rush Limbaugh, helped launch a hashtag, #stopOReilly campaign. That sent advertisers by the dozens scurrying to pull their ads from "The O'Reilly Factor", from Mercedes, to Allstate, to Jenny Craig. There they all are.

The show normally takes in a reported $100 million a year for the network. It usually has 30 nationally known blue chip brands in a typical hour.

On last night's "O'Reilly Factor", there were only ten national ads, all for obscure brands, things like catheters. Among the few who hadn't fled until last night, the local business referral service, Angie's List.

A previous statement from the company read in part, "We place ads across a wide spectrum of venues, intending to reach as many as possible without taking viewpoints on the venues themselves. Just as we trust members to make their own hiring decisions, we trust them to make their own media consumption decisions."

But now, Angie's list too has joined the exodus. Weren't they right the first time? Isn't there a bad precedent here if a particular show can be drummed off the air by fearful advertisers.

Joining me now, the president of Media Matters, Angelo Carusone.

Angelo, good to have you here.

Did you personally play a role with Angie's List? Did you communicate with them?

ANGELO CARUSONE, PRESIDENT, MEDIA MATTERS: I did. Along with a lot of stop O'Reilly participants and organizations out there called Sleeping Giants which represents consumers. I spoke to Angie's List yesterday and they confirmed that they're no longer advertising on bill O'Reilly's program.

And I think that's because they came to recognize that it's not about what Bill O'Reilly is saying or the content of his program but it's actually about what Bill O'Reilly did and whether or not they want to continue to associate their business with that kind of conduct.

It's very different than the content of what he's actually saying and I think that's an important distinction to draw right at the top.

SMERCONISH: But doesn't it represent a form of censorship? I mean, if this really were of such import that it drove away the audience, then the audience would flee O'Reilly, but instead you don't lean on the audience, you lean instead on the advertisers.

CARUSONE: I don't see this as a censorship issue because it's not about the content of his program. In fact, it really is a personnel issue. Any other employer would have held an employee accountable for the things that bill O'Reilly is doing.

[09:45:00] But there's clearly a culture and an epidemic of sexual harassment at FOX News and they've tried to sweep it under the rug.

And so, in other case, the employer would have held the employee accountable. They didn't do it with Bill O'Reilly. And so, in this scenario, you're seeing the business associates hold it accountable. And that's not my opinion. That's reflected in the statements that the advertisers are giving because they're not just saying, you know, we don't want to advertise anymore. We want to avoid controversy, that kind of thing.

They're taking very strong stances about their position on sexual harassment and that's because when they're out there speaking, you know, they're speaking as much to their current and prospective customers as they are to their own employees. They have to make it clear that they will not tolerate this kind of conduct.

SMERCONISH: What does it say to you that the audience that he attracts is not abandoning him and in fact to the contrary, they appear to be rallying his defense? "The New York Times" has just debuted his brand new book, ironically titled "Old School" in the number one position and the recent ratings for "The O'Reilly Factor" -- they are extremely strong.

So, isn't it fair to say you can't reach the people who are buying that book and tuning into that show, therefore you go the route of the advertisers?

CARUSONE: I just completely disagree with that. I don't -- first of all, in terms of the ratings, if you have ratings and you can't commercialize your ratings, that means that your ratings mean absolutely nothing, and that's reflected even at the top of this segment when you sort of laid out, not just the reduction in the number of paid ads on his program, but also in the quality of the advertising that's on his show.

I did some back of the napkin math and Bill O'Reilly's show will lose somewhere between $20 million to $25 million this year alone in lost revenue as a result of this advertiser exodus.

In terms of his audience, again, I don't think it's about trying to persuade people. I don't see his audience out there defending him. When I -- I've done similar advertiser education efforts before. And I saw blowback and pushback from Glenn Beck's supporters and Rush Limbaugh supporters.

There are not Bill O'Reilly supporters screaming in the streets, you know, saying, hey, you should not be doing this to Bill O'Reilly. Fine, they might be still buying his books but he doesn't have anyone actually defending what he's saying or did except for the co- presidents of FOX News, but his people are not defending what he did.

SMERCONISH: Right, but they're still, as you point out, buying books and tuning into the program.

CARUSONE: That's true.

SMERCONISH: Let me put something on the screen from Jack Shafer who writes about media matters, not your Media Matters, but media matters in general for "Politico". He said, "Media Matters President Angelo Carusone," that would be you, "has called for O'Reilly to be fired over the charges, but Carusone's organization would want O'Reilly sacked if he were as chaste and pure as Mother Superior. The charges just give them an opportunity to destroy O'Reilly by other means."

Isn't that a fair point? You've been waiting for your opportunity to take him down.

CARUSONE: Fine, I've been looking for an opportunity to make him accountable. But I think that Jack is really missing the point here. Should we really not -- should we really let Bill O'Reilly engage in serial sexual harassment and worse, validate and say that it's OK? Because FOX News had a decision and they continue to sweep it under the rug.

So, now we all know about it and now that business associates know about it, should we really say that it's OK and Bill O'Reilly should continue this, that FOX News should continue to be treating employees and its women like this? Is that what we should be saying? because I personally don't like what Bill O'Reilly says and I think his business model of vitriol and misinformation is a problem.

SMERCONISH: Well, I just want to -- but I just want to make clear and I think Jack was making clear that you do have a political perspective and it is a perspective at odds with O'Reilly's. Along comes this story, a serious and significant story, and you have immediately, you know, rushed to try and use it as a wedge to take him down.

One last observation and you can respond to this. It's another one from Jack Shafer. I thought he wrote effectively on this. "The O'Reilly boycott is a bad idea. Even if you hate the guy, think of it this way, it may end up energizing calls for advertising boycotts against the on-air talent you like, inspiring timidity among ad buyers who are already too timid."

Do you worry that there could be similar reactions to those on the left who politically you welcome their statements and remarks?

CARUSONE: If an on-air personality engages in serial sexual harassment, the network should take care of it and if that network doesn't take care of it, then that means that they're creating a business problem for themselves. It's bad business to tolerate this stuff, and that's reflected here right now.

I don't think this is about ideology and I think trying to collapse it down there is insufficient and doesn't grasp the whole thing. I'm not out there persuading people to suddenly care about this, but I do think that the role we're playing, an important role, is giving the context, to show that it's not just a few one-offs or isolated incidents, that it's actually part of a deeper pattern.

And that's -- when you make that point, that's why the businesses see this as a business decision. They recognize that they cannot not only not tolerate this but that as a result of the mismanagement that's already been displayed, there's likely more to come.

[09:50:01] And so, they're making a business choice and I respect those decisions.

SMERCONISH: Angelo, final quick question because I'm over. If there were a personality on the left caught up in bad behavior and hijinks, would you lead a boycott of their advertisers?



CARUSONE: Don't sexually harass people.

SMERCONISH: Appreciate your being here very much. I like consistency. So, that's a good thing.

CARUSONE: Thank you.

SMERCONISH: Thank you.

Up next, the best from tweets and Facebook.

Catherine, hit me with another one. What have we got?

"Smerconish, not sure how advertisers fleeing O'Reilly is censorship. Companies can choose to put their ad dollars wherever they want."

Mike, and to that I would respond, and viewers can choose to watch and listen to whatever they want. I'd just find it curious they have to go after advertisers and lean on them. You'd think people that tune into these programs would say, I've had enough. That hasn't happened thus far. Back in just a moment.


[09:55:06] SMERCONISH: So please follow me on Facebook and Twitter.

"Smerconish not censorship, just wanting their brand associated with bill's brand. Ask Jello how they feel about Bill Cosby."

Touche, but there's been no conviction in this case, nor in the Cosby case yet of anything. Again, why not reach the audience instead of the advertisers.

Hit me with another one. I don't mean to come off as the defender. I just think I'm asking an interesting question.

"Have no time or interest in boycotting or protesting O'Reilly. I'm old school. So I either change the channel or shut off the TV."

Exactly, Peter. That's what I've been saying. Instead of saying, oh, Angie's List, I'm not going to hire a repairman because you're advertising on O'Reilly.

One more quickly if we can.

"I believe Rand Paul not only took a shot at John McCain but also complimented Barack Obama. Thinking man." I agree with you. I'll have to go back and watch that tape, Robbdogg.

Hey, gang. Thank you so much. See you next week.