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Report: Latina Socialist Ousts Democratic Heavyweight; Justice Kennedy Retiring from Supreme Court. Aired 2-2:30p ET

Aired June 27, 2018 - 14:00   ET

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

[14:00:00] BROOKE BALDWIN, CNN HOST: I'm Brooke Baldwin. You're watching CNN. Thank you for being with me. Let start with this extraordinary upset sending shockwaves through the Democratic party today. Alexandria Ocasio-Cortez, 28 years of age unseating one of the top senior House Democrats, Joe Crowley and his primary congressional election last night. Ocasio-Cortez, a former bartender, born in the South Bronx, Puerto Rican parents, she told voters her story in this now viral video where she promised a new generation of leadership.

(BEGIN VIDEO CLIP)

ALEXANDRIA OCASIO-CORTEZ, WINNER OF SOUTH BRONX DEMOCRATIC PRIMARY: This race is about people versus money. We've got people. They have got money. It is time we acknowledge that not all Democrats are the same. That a Democrat who takes corporate money, profits off foreclosure, didn't live here, doesn't send his kids to our schools, doesn't drink our water or breathe our air cannot possibly represent us.

(END VIDEO CLIP)

BALDWIN: Crowley spent ten times as much money as Ocasio-Cortez, but you she mobilized 50 percent of the vote. Her reaction as she took the lead last night says it all.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: I'm going to grab here. She's right here. She is looking at herself on television right now. How are you feeling? Can you put it into words?

OCASIO-CORTEZ: Nope. I cannot put this into words.

(END VIDEO CLIP)

BALDWIN: Nope, not in that moment she couldn't. If she wins in November, she will become the youngest woman to ever be elected to Congress. And she told Poppy Harlow this morning that last night's victory is just the beginning for women in 2018.

(BEGIN VIDEO CLIP)

OCASIO-CORTEZ: Women are feeling emboldened. Justice, we have to fight for it, we have to earn it, we have to fight for every vote, every scrap. And not only is that necessary, but that women are ready to do that this year now more than ever.

(END VIDEO CLIP)

BALDWIN: Ocasio-Cortez one of the 394 women running for House seats this year. 56 women running in governors' races. In the senate a record high number of female candidates, 49 to 54 depending on which third party candidates you include. The Senate record for women still -- OK. I'll stop what I'm talking about because we're getting urgent news. We'll go to Jessica Schneider who covers all things Supreme Court with us. What are you learning?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Some news just coming across right now from the supreme court. After the final day of the term, a few hours after some of the final decisions, we've just learned that Justice Anthony Kennedy will be retiring. In my hands, I have a letter from Justice Kennedy to the president as well as a press release from the supreme court. This retirement of Justice Kennedy will be effective July 31 of this year. So just about one month from now. Of course, we all stood outside the supreme court today after the supreme court issued two of its last opinions of the term. And the big swirling speculation was would he or won't he. And what is interesting about this, we were expecting potentially some sort of notification or announcement from the bench.

Of course, all the justices were there this morning except for Justice Sotomayor, she was so a pre-planned trip that she couldn't reschedule. And Chief Justice John Roberts, he was up at the bench this morning. And as everyone was anxiously a waiting whether or not Justice Kennedy would retire, the chief justice says I do have some retirements to announce this morning but then he went on to talk about some of the court employees who were retiring. So, sort of keeping some of us on edge there. We thought if it was going to happen, we weren't expecting it today. But yes, in fact Anthony Kennedy will be retiring effective July 31.

Brooke, I can read a short portion of this letter that he did write to the president. It is dated today. He says this letter is a respectful and formal notification of my decision. He said -- he continued to say, "for a member of the legal profession, it is the highest of honors to serve on this court.

[14:05:00] Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the constitution and the laws that must always conform to its mandates and promises."

This is huge. This is significant, Brooke. We've seen Justice Kennedy throughout all of these years ever of service, this centrist moderating force. And with president Trump in office and his recent appointment of Justice Neil Gorsuch, that has taken the court in that conservative realm, President Trump will get the chance to appoint a new justice here. And just in the past -- in this past term, we have seen I think about 19 cases that were 5-4 decisions. Justice Kennedy serving as the swing vote in many of them.

But this will really solidify once president Trump gets the chance to nominate another justice if he is successful in nominating an extremely conservative justice as he did with Neil Gorsuch, this will give the court a real tilt 5-4 for the conservatives. So, Justice Kennedy, he served as this moderating voice, this swing vote. He didn't like to be known as the swing vote, but he was. And now he is retiring. One other interesting thing, yesterday the travel ban decision came done. Justice Kennedy, he did side with the conservatives in upholding the president's right to enact this third version of the travel ban.

However, what is notable, he wrote a concurring opinion here. It was only about a page and a half long, but in it he not so directly but indirectly scolded the president essentially saying Mr. President, words matter. A lot of people looked at that concurrence and that sort of warning to the president thinking, umm, what will he do here. He obviously wasn't pleased with what the president said regarding the travel ban and the mu Muslim ban, if you will. And now we know that Justice Anthony Kennedy will be retiring effective July 31. Big news that will send ripple effects throughout congress, throughout the administration, throughout the supreme court and this country.

BALDWIN: So well reported out. Just his profile on the court and I think just underscoring we you saw the travel ban 5-4, the young decision 5-4. And now this would be number two as far as nominations under this administration which is huge obviously for this administration. Let's go to Gloria Borger on that point and we'll keep bringing different voices in as we cover this news that Justice Anthony Kennedy will be retiring. You heard Jessica point out the letter to the president. This will be effective July 31. But Gloria, this has to be a win for the president.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, look. This could potentially transform the court for generations. And when you think of Justice Kennedy, you do think of someone who is a moderate. But his vote was crucial in a few areas. And let me just tick them off. Same-sex marriage, access to abortion and affirmative action. So those are three areas which he was a very key and deciding vote. And now with his retirement of course the president is going to get an opportunity to name another conservative to the bench. It will cause an uproar I can tell you on capitol hill because if you will recall last time the rules were changed a bit to confirm Gorsuch. And you're heading in to the midterm elections here, Brooke. And so once again the Supreme Court will become a huge issue you for both Democrats and Republicans.

BALDWIN: Gloria, stand by with me. I want to bring in another voice who has been covering the Supreme Court for years. And just if you can, do we know -- she's nodding yes, I have -- the significance of this retirement and the further tilt to the right of this court?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: I cannot overstate the significance, Brooke. Back in 2005 when Sandra Day O'Connor announced her retirement on July 1, it was a big deal because she was the center of that court. This is even bigger frankly given the political situation. I was in that courtroom this morning. I actually wonder if his colleagues knew when they took the bench because there was a certain casualness to them. But Justice Kennedy's wife Mary was in the room. Some family members seemed to be there. And he must have told them at lunch. But this was one heck of a well-kept secret despite all the rumors we've been hearing.

[14:10:00] So it is really a blockbuster. And exactly Gloria and others said, it really makes a difference that Donald Trump is getting this nomination because -- well, OK, you've been through the gay rights, affirmative action, death penalty issues. Justice Kennedy has been key. And what is different this time around is that the Senate has a Republican majority and the filibuster rules have been changed. It will be an easier time frankly for the Republicans to get their appointee in place.

BALDWIN: I'm curious, when you say the justices were more casual and you saw Justice Kennedy's wife there, when you say casual, how do you mean? Do you think they knew?

BISKUPIC: I'll tell you what I saw, and we can just take it from there. So, I'm sitting there, they come in, while Justice Alito was reading that labor union case that we've been talking about, Justices Breyer and Clarence Thomas were kind of chatting quietly on the side, laughing a little bit. Justice Breyer when he read his decision in a separate case, he was very ease going. I'm telling you, Justice Breyer and the other three liberals, their life is really changed as of this moment. Because anytime that they were able to win, it was because of Justice Anthony Kennedy. Now, you know, maybe I should have said why is that man smiling. His life is about to be changed. But that is why I thought, well, maybe he knew, maybe he didn't know. Anyway, it is like the Kremlin, we're always reading little signs.

BALDWIN: The tea leaves, exactly. Any little joke, any little side bar conversation is noteworthy. Joan, thank you and stand by. I have Joshua on the phone, a former clerk for Justice Kennedy. And I suppose the rumors were swirling, but is this a total shock to you, did you have any idea?

JOSHUA MATZ, FORMER CLERK FOR JUSTICE KENNEDY: I personally had no idea. Frankly I'd be surprised if anyone did. There is huge speculation. Justice Kennedy is older, he's been on the court a long time. He is quite conservative. It may not be surprising that he would prefer that his successor be appointed by a Republican president. But, no, he hadn't publicly signaled this in any clear way. And obviously it will massively disrupt the entire landscape.

BALDWIN: So clearly the timing, you mentioned he is 81 years of age, he's been on the court for years. But the timing, knowing that this is a Republican administration under which he would be retiring has to have factored in. Obviously, we can't climb into his heart and mind, but that had to have factored in as far as the timing to bow out.

MATZ: And he would certainly have been aware of it. What I actually do find kind of amazing is that Justice Kennedy is someone who cares a great deal about the institutional legitimacy of the Supreme Court. And we're coming up on a midterm election that otherwise would have been a referendum on the extraordinary and might be deeply disturbing developments of the first two years of the Trump administration. And he just dropped a Supreme Court size nuclear bomb into the middle of that electoral landscape.

And instead of waiting a year, he made the decision to retire at a moment where I think many people will remark could serve to the advantage to Republicans who will now either have the chance to confirm a justice right before the midterms or to go into the midterms with an open seat which has historically motivated their base a great deal. So, I don't know. I think the timing of the decision -- I don't think that was his intent, but I do think it is a likely consequence and in that respect, I think it was extraordinarily prudent and it will have lasting consequences far beyond the court itself.

BALDWIN: It certainly -- we talked about the decisions of the Supreme Court in the last 24 hours and how it even shaped people when they went to the polls in 2016 knowing about the vacancy on the court, depending on who is sitting in that White House would be predicated upon, would be selected in that seat. Knowing the man as you do, Joshua, what do you think Justice Kennedy has actually thought about president Trump behind the scenes? Do you know?

[14:15:00] MATZ: You know, it would be impossible to speculate about that. Justice Kennedy is a profoundly decent person. He is committed to civility and decency and dignity. Not only in jurisprudence, but the democracy to move forward and co-exist and organize our politics. I'd be surprised if the justice were enthusiastic about some of the ways in which the president has conducted himself. There may be other policies that he has adopted or things that he's done that the justice likes. It would be very difficult to know that. But I do think that when you see his concurring opinion in the travel ban case yesterday, what he essentially says --

BALDWIN: Words matter. He was saying words matter, right?

MATZ: Words matter. And more importantly, he was saying look, even if we the Supreme Court are not going to hold you to account on this one, there is an anxious world watching. And you have a constitutional duty of your own to act responsibly and with civility in the way that you speak. And I do think that was an unsubtle message, a message of disapproval, but clearly to the extent he felt that way, it wasn't enough to keep him on the court at a time where the president can now seek to capitalize on his decision.

BALDWIN: An excellent point. Joshua, thank you so much for hopping on the phone with me and talking about Justice Kennedy. Again, if you are just tuning in, we have now learned, and I have a letter now in hand that Justice Kennedy has written to President Trump as of today, announcing his retirement from the U.S. Supreme Court effective July 31 of this year. So Kaitlan Collins, she is our White House reporter with a little bit of news from that end of Washington. What do you have?

KAITLAN COLLINS, CNN WHITE HOUSE REPORTER: It turns out the White House is just as surprised as the rest of us by this news that Kennedy is going to retire. They are still digesting it. But President Trump who just greeted the president of Portugal says he will speak more on this in a few minutes. The reporters who go in for that spray to see the two leaders sitting down next to each other in the oval office are in the oval right now. The president is likely he is speaking about it. So, we will hear from him.

But this is certainly going to be seen as good news inside of the west wing. Of course, just yesterday we saw the power of what that last nominee, Neil Gorsuch, had on the vote to uphold the travel ban. So certainly, they will look forward to getting someone else on the Supreme Court. We'll likely hear from the president in a little bit. But yes, the White House was caught off guard by this, but we will hear from President Trump on what they have to say about this huge breaking news here any moment now.

BALDWIN: All right. We'll say tuned for that. Thank you very much. So, surprise at the White House and surprise from a number of people here as we have been reporting on this breaking news. Steve Vladeck, one of our other Supreme Court gurus is with me now. So why now, why under this administration, why months before this key midterm election do you think Justice Kennedy is saying I'm done?

STEVE VALDECK, SUPREME COURT ANALYST: You know, it is a great question. I think we can only on speculate. But I suspect Justice Kennedy took a look at the calendar and realized that if he pushes this off until next year, perhaps even 2020, we're back into the possibility that his seat might be held open until there is a Democratic president perhaps even a Democratic Senate. This is Justice Kennedy being faithful first and foremost to his Republican politics. And to ensuring that his successor will be nominated by a Republican president and if things go according to plan confirmed by a Republican Senate.

BALDWIN: Talk to me a bit more about how he has been -- he is a conservative centrist, considered the court's swing votes. He was appointed by President Reagan back in 1987. When we talk about how he had this swing vote with the travel ban decision just yesterday, can you run through a couple of other major decisions of the Supreme Court where he played that key role?

VLADECK: Yes, it is hard to think of major decisions in the last decade where he didn't. Ever since Justice Sandra Day O'Connor retired in 2005, and was replaced by Justice Alito in 2006, we've had these two pretty solid four justice blocks of conservatives on the one side, progressives on the other. And Justice Kennedy the closest to either side. Sometimes he would side with the progressives. That is how we got the decision Obergefell ruling in 2015 which held there is a constitutional right to same-sex marriage.

[14:20:00] Often times he would side with the conservatives, as we saw, Brooke, especially not just yesterday but this term. I mean of the court's 19 5-4 decisions this term, 14 of them were the conservative majority and Justice Kennedy didn't join the left in a single one of those. So, I think from his perspective, he had done his work. He had accomplished what he set out to do and it was time to clear the way for a younger perhaps more energetic successor.

BALDWIN: Steve, stay with me. I want to pivot back to Kaitlan Collins at the White House. What do you have now? COLLINS: We don't have the tape yet of President Trump speaking, but

we do have comments from what he said from those reporters who are inside the oval office right now as he is meeting with the president of Portugal. He is talking about the news that Anthony Kennedy is going to retire. He called him someone a respectful man, someone he's known for a long time and has a lot of respect for, but he did say that the search for the new Supreme Court justice will begin immediately.

He is saying that it will be someone outstanding. He thanked Kennedy for his years of service. And also, he was asked who are you going to pick to replace him and he said he is considering numerous people and you'll remember that list he had when he was considering who to nominate when he did eventually nominate Neil Gorsuch. He had a list of people. It sounds like from this note that the president will be picking off of that list. It was a list of 25 people that the president says are highly educated, highly intelligent people and he does say this isn't exact quote, but he does say it will be someone from that list.

So, we are hearing the first reaction from President Trump on the news that Anthony Kennedy will retire. Certainly, news that the west wing will be happy about. We also noted that the White House canceled Don McGahn shepherding this process likely as he did with Neil Gorsuch before last year when the White House was going through that process. And my colleague did spot Don McGahn leaving the press secretary's office just as the news was breaking. So, we are seeing the White House react in real time. But according to President Trump, the search for someone to replace Anthony Kennedy will begin immediately.

BALDWIN: All right. Thank you. I want to take that reporting straight back to john. And you heard -- first of all, she's saying that the president was surprised by the news which is noteworthy. Obviously, the president thanking Justice Kennedy and saying the search will begin immediately. We remember the huge list that he had before Gorsuch became the next justice. And that Don McGahn will shepherd this whole process. Tell me moving forward what this selection process even looks like.

BISKUPIC: Let me just how I have one other loose and there. I think it really comes down to he is turning 82. He was starting to look a little weary. And one other note about this term. I don't want to mislead you to think that I saw this coming because I really didn't think he was going to go. But here is one thing I thought about. This was a term when John Roberts the Chief Justice seemed to own the cases more than usual.

Typically, Anthony Kennedy is not just the swing vote, he has been the man who wrote up the legal reasoning. And in case after case this term, Roberts had a little bit more control. I'll just mention the partisan gerrymandering one that Roberts kept for himself and Kennedy didn't even write in. And that was an area where he had previously straddled the middle line.

And so, I just want to mention that Kennedy in some ways seemed to be withdrawing from the court during this term in terms of aggressive approach. Now, going forward, we know several names on the list. They have been on for a while. And there are two right away that I'll mention who happen to be former law clerks of Justice Kennedy's. A Brett Kavanaugh, who is a Federal Appeals Court judge here for the District of Columbia circuit. Ray Kethledge on the U.S. Court of Appeals for the sixth circuit. Some of the names that we've seen come up to lower court appointments since President Trump came into office for example a woman by the name of Amy Coney Barrett, she was a Notre Dame law professor who is now on the 7th circuit based in the Midwest.

[14:25:00] So they have names that they have vetted in certain ways. And I think that just what Kaitlin said, Don McGahn who played such a role in the selection of Neil Gorsuch, and it will come down again to outside advocates for example from the Federalist Society who have been involved in this vetting process. They have been a real partner with the Trump White House here for lower court nominees and I'm sure that the Federalist Society and perhaps the Heritage Foundation also will put in their very significant two cents on who the president's choice is.

BALDWIN: So those are potentials. Let me ask the same question to Steve. You heard Joan rattle off three potentials on a short list that have been vetted. Who is on your short list?

VALDECK: Yes, I mean I would start with Joan's list. I think the one -- there are two actually big differences between this upcoming confirmation fight and the one we had with Justice Gorsuch's ultimate confirmation. The first is President Trump now has his own bench of smart young federal appellate judges who he has nominated to the Federal Appeals Court. Joan mentioned Barrett. I would add Amul Thapar, a circuit judge in Kentucky on the sixth circuit who is very close to Mitch McConnell who would be the first supreme court justice of South Asian descent.

But it is important not to lose sight that it was understood that the president was going to have just about a free hand when it came to filling Justice Scalia's seat because almost no one he would have nominated would have changed the court's ideological balance. Replacing Justice Kennedy is a completely different conversation. And so, I think one of the really big questions is going to be whether any of the moderate Republicans, someone like Senator Jeff Flake or Senator Bob Corker, or even John McCain, will exert some preference for another centrist or whether there will be a lot of pressure on the president and senate Republicans to use this as an opportunity to move the court firmly to the right by replacing Justice Kennedy with someone quite to his right ideologically of the model of a Neil Gorsuch.

BALDWIN: And I think that is an interesting point whether you do hear from the more moderate Republicans or if it does go farther to the right. But to the White House, let's go back over there as we know the president has been reacting to this news of this retirement. What do you have?

COLLINS: That's right. So, the president of course the White House still digesting all of this news, but we have sources telling the CNN White House team that the president will push to have a new Supreme Court justice before the midterm elections this November. Now, that is a pretty quick time line and that would mean that they would have to have someone nominated within weeks and that would include capitol hill staying here essentially over the summer as that process plays out. All of that coming as the president is saying that he will pick someone from his already existing list of Supreme Court potential nominees.

Now, I'll also remind you last fall I believe it was November, the White House published this list seemingly out of nowhere at the time of potential Supreme Court nominees. That is a little bit different from that list that was published before he nominated Neil Gorsuch, but then they published essentially an updated list. But it came at a time when it raised eyebrows because there was a question of who was the White House expecting to replace on the Supreme Court? Now that Kennedy has said that he will retire, this list is coming into play. There are dozens of names on the list does mean the president will try to pick someone before the midterm and have then confirmed. That is a pretty quick time line, but something that the president will push for a swift confirmation of whoever it is he does nominate to the supreme court.

BALDWIN: All right. Thank you. So, Gloria Borger back to you. If they are hoping to get this done before the mid terms, and chalk that up to another reason why members of congress will not be taking their summer recess because they have to get this thing together, they only need 51 votes. Democrats have little leverage.

BORGER: Right. They changed the filibuster rule for judges. So, Democrats don't have a lot of leverage right now. What they can do is try and stretch this out. I mean they are still smarting from what happened to Merrick Garland what which was put off indefinitely if you'll recall by Mitch McConnell and of course Neil Gorsuch is the reason why. And now the Democrats are probably gathering, and I've been trying to get will touch with some about what they can do to delay, delay, delay. Perhaps until after the midterms. But they don't control the floor in the senate. Mitch McConnell controls the floor. And they don't have the benefit of the bill filibuster anymore. So, it is very likely that the person that Donald Trump picks is the person that would wind up on the supreme court unless the Democrats can figure out some way to slow down that train if they believe, and I think it is a long shot, that perhaps they could take back control of the senate this people are really not predicting right now.

BALDWIN: So, what about Steve's point, though, that you have this conservative centrist in Justice Kennedy. And when he is gone, how much input would be taken from more moderate Republicans on capitol hill to replace him with someone who is more centrist, or would they go farther right as perhaps President Trump would like.

BORGER: I think President Trump makes up his own mind on these things. And he is really concerned about the base. You saw that in the immigration debate. You saw that on the travel ban. You see that in almost every decision that he makes. And I think that he is going to be thinking about his base and his legacy when he looks at the direction of the supreme court. Any president would think about his legacy by the way, not just Donald Trump. But Donald Trump pays an awful lot of attention to the people who got him elected. And so those who were thinking like you might want a more --