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Anxieties over Potential Supreme Court Nominee; Importance of Federal Judges for States; Will Trump Pick Supreme Court Nominee with Similar Conservative Views; Qualifications for Supreme Court Nominees; Confirmation Process for Supreme Court Nominee; Lasting Impact of Newly Appointed Federal Judges on States and Nation; Aired 10-11p ET

Aired June 29, 2018 - 22:00   ET



CHRIS CUOMO, CNN HOST: Don Lemon is, he's off tonight.

So, what do you say, about another hour? And it's a special topic of CUOMO PRIME TIME.

It has been the talk of the nation this entire week, another seat opening up on the Supreme Court. This one perhaps the most consequential in generation. Why? Because Anthony Kennedy was a legitimate swing vote on this court. Not always but enough to make a difference.

Now, not only can President Trump reshape the high court for decades, but he's also working overtime to reshape the lower courts. This is probably the most underreported, important part of the administration.

Obama put in a lot of judges that changed culture in one direction. Now, the judges are being put in that are doing the opposite, all over the country.

Now, you may not realize how much of a profound influence courts have over your lives. They are often the final word on most matters of law, not everything goes to the Supreme Court, very little does. Judges on appellate courts hear around 60,000 cases a year. Compare that to roughly only 80,000 or so a year by Supreme Court, 60,000, 80,000, all right?

That's why Republicans are trying to fast-track nominations of conservative judges to this branch of the judiciary, in the event that they lose control of the Senate in November. And that's why Democrats are holding them up.

So, let's get some more on this right now from our chief political correspondent, Dana Bash.



whirlwind of Trump news can be overwhelming, from trade wars to an immigration crisis, Twitter rants, Russia --


BASH: -- a porn star, yet under the radar a yet sexy story likely more lasting: President Trump's quiet effort to fill the federal bench.

TRUMP: We're appointing judges like, I guess, never before has anything happened like what we're doing on great conservative Republican judges.

BASH: And it's not just the Supreme Court.

(on camera): There's an understandable focus on a Supreme Court vacancy. But the real work, maybe the more important work, has been done at the level just under.

CARRIE SEVERINO, JUDICIAL CRISIS NETWORK: Absolutely. Yes, the Supreme Court, the very, very top tier of the cases, they do get there. But so many cases, 99 plus percent of the cases, they ended up at the lower court and they're decided there.

BASH: The Trump White House and Senate Republican leadership are moving fast to confirm conservative judges. After just a year-and-a- half in office, the Senate has already confirmed 20 district court judges and 21 on the appellate court level. And of those 12 in 2017 alone, that is the one year more than any other president in American history.

Now, how has this happened? Something mostly missing from Washington right now, that's discipline.

There's a very specific structure in place to try to make these judicial nominees move quickly, right?

SEVERINO: Sure. This is a top, top priority for Don McGahn, for the White House counsel's office. They all recognize that these are people who are going to sit on the court for a generation. And they're going to be the ones, you know, every legislative accomplishment you have, or the executive orders, all of those, end up with interpreted by the court. So, if you don't have someone who's going to actually fairly interpret what you're doing, you're wasting your time.


BASH (voice-over): No one understands that than Senate Majority Leader Mitch McConnell. He's been criticized for staying silent about most of Trump's controversial behavior. But McConnell is keeping his eye on this ball, taking advantage of a GOP president and Senate to confirm as many conservative judges as possible. SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: President Trump's

judicial nominations have reflected a keen understanding of the vital role and judges play in our constitutional order.

BASH: The expedited pace has made for stumbles. Nominees who even, GOP senators don't find qualified.

Remember, this confirmation hearing?

UNIDENTIFIED MALE: Have you ever tried a jury trial?








BASH (on camera): But don't except the push to fill the federal bench to let up anytime soon. As we speak, there are 150 vacancies, and 88 Trump nominees pending.

(voice-over): For a president who likes to tend to his base, few things make them as a result him happier than appointing conservative judges.

TRUMP: By the time we finish, I think we will have the all-time record.

BASH: Dana Bash, CNN, Washington.


CUOMO: Very helpful reporting by Dana there. Our thanks to her.

So, the courts have become the front lines of the battle between states like California and the Trump administration. California's attorney general is Xavier Becerra. He's filed more than two dozen lawsuits against the administration so far and he joins us now on PRIME TIME.

Good to see you, sir.


CUOMO: So, you told me when I saw you out there in California, when we were working on human trafficking, why are you ignoring the judges? Why are you ignoring the impact on the federal courts? I don't know why I was, because we get distracted by a lot of the things that the president says.

But how important are the judicial determinations and what are you seeing in your circuit, the Ninth Circuit, out there in California?

BECERRA: They're the court of last resort, the Supreme Court and the federal courts before that. So, they are crucial for justice, and as we've seen in our history, sometimes our courts have gotten it wrong. And when they get it wrong, it does take generations to make it right.

Korematsu comes to mind.

CUOMO: The Japanese interment case.

BECERRA: This is the case of Japanese interment, yes, during World War II. And it comes to mind because of the recent decision on the Trump Muslim travel ban.

CUOMO: Janus case, yes.

BECERRA: Yes. So, history, unfortunately, repeats itself. But history will be the best judge of what our justices on all the courts, but certainly on the Supreme Court do.

CUOMO: You know, it's interesting. I said the Janus case, which was the union case and about what could happening in collective bargaining. That comes to my mind because it was interesting how the Supreme Court decided to almost casually say, that could, you know, this precedent, yes, it's been like 40 years, we're undoing it. And so, similarly, in casual fashion, they said, by the way, Korematsu, back there, you know, decades ago, that was bad law.

So, we're seeing that while calls of judicial activism usually land on the left, that that's what they do, we're seeing that on the right in real-time right now.

How big a deal is this for your state and your function as the top law enforcement officer there?

BECERRA: Crucial, because so many of the challenges that we face, we can take on at the courts. And if we don't have fair play in the courts, then California could lose. And if California loses, because we are the most dynamic of the states, the economic engine for the country, that means ultimately that ripples through and hurts everyone in the country. And so, it's important to have justice dispensed at all levels of our courts.

CUOMO: So, you are the yang to the ying that we're saying and anticipating on the right, which is that states all over the country, if the president puts in an expected hard-line conservative judge, not like Anthony Kennedy, that they will start passing laws in their states anticipating favorable outcomes. Certainly in more sensitive cultural areas like the Roe v. Wade situation.

But you are also doing things like that in your state. You're passing laws and you're bringing suits almost prophylactically, excuse the pun, to protect what you care about. How so? BECERRA: Well, we're trying to defend everything that has made

California the number one job creator in the country. The -- now, we are the fifth largest economy in the world. We just passed Great Britain, and we want to protect that status because when you become number one in agricultural, in technology, in manufacturing, in entertainment, in hospitality, and graduates from college universities, you're not going to -- you're not interested in taking second place. You want to continue to be number one because that makes you a dynamic state.

And so, we have to defend that. If I have to take on whether it's a business practice or the illegal practices of the federal government, we'll do it to protect what has made California number one.


CUOMO: What are you anticipating happening in the years ahead?

BECERRA: You know, you're talking to the son of immigrants, and so, I'm still very optimistic. I know sometimes it takes a while for justice to surface, and I'm prepared to fight to make sure that that's the case. I've lost as many fights, if not more than I've won during my years in Congress, and now as the AG -- actually as the AG, I've won far more fights than I've lost against the Trump administration.

And so, we're hoping we could continue to just prevail on those things that reflect the values of California. And the California 40 million person population that has made not just the state so dynamic, but the country as well.

CUOMO: You know, it's interesting. Elections have consequences, that's the cliche, right? You got 141 judges I think in your circuit. There are like 25, 26 vacancies. So, it's going to be a significant impact who comes in, and the political reverberations heading into the midterms we're hearing now.

And something has come out at the nexus of law and policy that is emerging the Democratic Party and I want your take on it, the idea of abolishing ICE. At first, this was just like whimsy from the left, from the far left of you party. But now, the mayor of the country, the mayor of New York City, sitting senator in New York all saying, yes, yes, that's the way to go.

Do you agree?

BECERRA: ICE stands for Immigration and Custom Enforcement. We need immigration enforcement. We need customs enforcement.

What we don't need is violation of human rights. We don't need violations of constitutional rights. We don't need children separated from their parents. That's not America.

I think you can undo the illegality and immorality without doing an agency that must do the work of a sovereign government. And so, we need to have immigration enforcement, we need to have customs enforcement. We just need to make sure it's done right. And we have a lot of good people within that department and that

agency who wish to do it the right way, we just have to make sure that those who are doing it the wrong way are either punished or removed.

CUOMO: Well, and also, it's what they're being told to do also. And in fairness to the ICE people, they're not the one separating the families. But they are doing the round-ups. But that's interesting that your position is much more in what we thought the Democrats were about, which is fix it. But now, they're saying get rid of all of it.

Xavier Becerra, thank you very much for your perspective out there in California. Appreciate it.

BECERRA: Thanks, Chris. Appreciate it.

CUOMO: All right. So, we got two of the best known legal minds in the country here tonight. We got Professor Alan Dershowitz and Professor, I'm bumping them up, Jeffrey Toobin.

We're going to talk Russia, the impact on President Trump's legacy, and the question of self-pardoning, which is still out there tonight. And we're going to talk about what these judges mean. These are the guys to do it. Great debate, next.

Stay awake, fellas. Stay awake.



CUOMO: All right. Back now, this special hour on the remaking of the judiciary. Joining us now for a great debate, CNN chief legal analyst Jeffrey Toobin, and Professor Alan Dershowitz, author of "The Case Against Impeaching Trump".

Professor, let me throw you a little bit of a curve ball. We heard from Cory Booker is spreading a little bit within the Democratic Party, that the reason not to hold the vote right now for Supreme Court justice isn't the McConnell reckoning of the Biden rule, but it's because the president is under investigation. And he is thusly compromised and should not be making this decision.

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: It's a nonsense argument I think. All presidents are potentially under investigation. Supreme Courts decides many cases involving the president. The implications of such a rule would be disastrous for democracy.

The president has the power to nominate. Now, of course the last nomination, the Gorsuch nomination was stolen from President Obama by improper tactics, by the majority in the Senate.

The Constitution says the president shall nominate and with the advice and consent of the Senate shall appoint. It doesn't say that the Senate has the right not to act on a nomination, and I think President Obama probably should have fought that harder, perhaps even on a constitutional basis, but that's yesterday's news.

I think this president does have the power to make a nomination. He is not a subject, we're told, of an investigation. The investigation may never end. And if it never ends, does that mean the president is denied the power?

It's an absurd partisan political argument that should go nowhere. There are good reasons --

CUOMO: All right.

DERSHOWITZ: -- for the Senate to scrutinize the nomination and maybe even turn it down. That's not a good reason.

CUOMO: Do you have any love for this idea, Jeffrey, or should we move on?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, I think we should move on. You know, it's a procedural argument. I think it's much more important to talk about what a Republican nominee --

CUOMO: Right.

TOOBIN: -- what a Trump nominee would actually do on the Supreme Court --

CUOMO: On that point, we got some insight today, Jeffrey, from Stuttering John, because he does that prank phone call on Air Force One with the president pretending to be Bob Menendez.

And as the ersatz Menendez asked about Roe v. Wade and says, I hope you're not too tough on Roe v. Wade because you know, if you're not too tough on that, and, you know, you get someone like Kennedy, maybe I'll vote for you, and the president doesn't say no, it's going to be a hardliner. I promised it during the campaign, Roe v. Wade has got to be on the table. He didn't say that.

Do you think there's a chance that he nominates someone who is more in the mold of an Anthony Kennedy than a Gorsuch?

TOOBIN: Chris, let me answer you clearly. The chance of him nominating someone like Anthony Kennedy is zero. The whole point -- or the whole reason Donald Trump remained so much support in the evangelical community is because he is going to appoint justices like Neil Gorsuch and whoever this turns out to be who will overturn Roe v. Wade, who will allow states to ban abortion, who will allow states to criminally prosecute doctors and nurses who perform abortions.

That's what Donald Trump has promised to do and that's what he's going to do. There shouldn't be any ambiguity --



CUOMO: The professor's shaking his head no. But you can't disagree with what the Jeffrey is saying. The president did say he would do that.

DERSHOWITZ: It's much more -- no, it's much worse than that. If you believe in the constitutional right to life, the logical implications is you should appoint justices who should forbid states from permitting abortions. That is if you really take logically the constitutional right to life argument, it doesn't leave it to the states, it takes it away from the states. It says the Constitution forbids the killing of fetuses.

And I think somebody ought to ask the president that direct question. Do you believe in a constitutional right to life that would deny New York and California and 40 some odd other states, the power to permit women to get abortions? Because that's the implication of the right to life argument.

CUOMO: And what if he says yes?

DERSHOWITZ: Well, then I think he loses the next election.

TOOBIN: The senators should vote according on confirmation.

DERSHOWITZ: I think the American public and the Senate and the Senate will not vote for a nominee who denies state rights, because right now, we're arguing about states' rights. Should the states or the Supreme Courts be doing it? But if you believe in the right to life as a constitutional matter, then you deny that to the states.

And if the president says that, he loses the Senate confirmation, and he loses the next election.

CUOMO: Do you think a nominee would answer that question? Because really, it's what nominee says, right, Jeffrey?

TOOBIN: This is the tragedy --

DERSHOWITZ: No, no, I think it's what the president says.

TOOBIN: This is the tragedy of Supreme Court nominations, is that it's all -- everything that matters is done in secret. By the time the Senate confirmation hearings come about, the nominees have been trained not to answer questions to say, well, that issue may be coming before the court so I'm not going to answer that.

CUOMO: Right.

TOOBIN: So, the groups that have been providing these names to the Trump administration, the Heritage Foundation, the Federalist Society, they know what these nominees stand for, but the public will not be informed. And that's what's a disgrace and that's what the Senate allows because they want -- the president's party wants to put people on the court without people knowing what they really stand for.


CUOMO: Professor, the reason I said the nominee's right because that's the person that's going to be vetted. You know, they're going to ask that person the question, whatever Trump says.

DERSHOWITZ: I understand that -- but the president has to be asked whether or not that's the kind of nominee he wants. As far as secretly vetting candidates, it is a disgrace.

CUOMO: Right.

DERSHOWITZ: It's a disgrace when liberals do it for a Democratic president --


CUOMO: Yes, I agree. I'm getting beaten up for saying that, and I don't know why.

I went back to Jeffrey's book and I went back to something you had written as an op-ed, and all the big brain guys agree with this, that it's a complete pageant. And the politicians on each side say, I want somebody who divorces themselves from any personal feelings or any partisan strip, and affect and I want this to just be about the facts and the law.

And all the men and women who come up say exactly that, and then they get on the court, and more likely than not, they fellow partisan influence. Fair point, professor?

DERSHOWITZ: Just remember Justice Thomas who was asked would he have ever made a decision in his mind about right to life.

CUOMO: Right.

DERSHOWITZ: And he essentially said under oath that he hasn't thought about it.

CUOMO: Right.

DERSHOWITZ: I mean, of course, when he was nominated, the president knew exactly what his views were. No, I do think overruling Roe versus Wade will hurt the Republicans ultimately because today, moderate Republican who have daughters or sisters who may need an abortion have a free vote. They can vote their economic policies, because it's not a referendum on abortion --


CUOMO: Or who have a strong feeling about their rights to -- or who have a strong feeling about their rights to control their own body.

DERSHOWITZ: Sure. No, I agree with that.

CUOMO: Whether or not, Jeffrey, they ever want to contemplate that kind of move, you know, most of the resistance is on just on the conceptual level of who makes the decision about their body, them, or some largely male legislative body.

TOOBIN: Right. And here -- you know, and the tragedy of all this is that, you know, obviously abortion is going to be a big part of this nomination process. And by the time the nominee gets to the public hearings, when asked about it, the nominee is going to say, well, I can't discuss it, and I understand Roe v. Wade is a precedent of the court, but I can't discuss my feelings about it.

So, Donald Trump and the Federalist Society, they know how this nominee is going to vote on abortion rights, but the public will be denied that information. And the information is they will vote to overturn it. Don't be misled.

CUOMO: Last word, Professor.

DERSHOWITZ: I don't think they will. I don't think they will.

Let's remember also that there are many, many more issues that are unpredictable. One of your previous guests talked about Korematsu. President Roosevelt did that. And most liberal justices of the Supreme Court upheld it.


Buck versus Bell, mandatory sterilization of mentally retarded people. Brandeis voted for it, all the liberal justices. You never know what cases are going to come up. And that's why it's so important that people of high quality, people who can make decisions not based on partisan considerations but on a fundamental approach to constitutional allow, it's so important that they be nominated --

CUOMO: It's hard to know and it's another reason that Roosevelt --


CUOMO: Go ahead, last word. Then we got to go.

TOOBIN: There's a mythology -- I'm saying, there's a mythology that presidents are surprised by how these justices turn out. That hasn't happened basically since Eisenhower, this kind of scrutiny has prevented that. Donald Trump will get what he wants out of this justice.

CUOMO: All right. Professor, thank you very much --


DERSHOWITZ: I don't think the president got what they want from David Souter.

CUOMO: All right. Professor, thank you very much. Jeffrey Toobin, thank you very much.

Two good minds on a Friday night. You can't bet that.

All right. So, what do we know about who the president wants to nominate? Well, we know a little bit from that prank phone call. I keep bring it up because I can't believe that it actually happened, that he talked about things in a serious way. But there are a little bread crumbs in his search. He talks about his

list, he talks about who he wants there. He says that there will be women.

Leonard Leo has the president's ear when it comes to the short list. We're going to go one on one with him, next.

Good to have you, sir.



CUOMO: So, President Trump says he's planning to announce his pick for Supreme Court on July 9th and that he's narrowed it down to about five people, including two women.

So, what's our current reckoning? Here it is. Let's put it up there for you. These are the front runners before we got the latest news.

You got former Kennedy clerk, Brett Kavanaugh. You got former Scalia clerk Amy Coney Barrett. You got former Kennedy clerk Raymond Kethledge. Court of Appeals judge Amul Thapar. You have Utah Senator Mike Lee. And Court of Appeals Judge Thomas Hardiman.

Now, I got him in there last because supposedly he was a close runner up to Gorsuch last time. Now, there's also a total of six women on Trump's original list. Will he actually choose a woman?

I want to bring in Leonard Leo, executive vice president of the Federalist Society. You will hear a lot about the Federalist Society, good and bad, during these times of presidential nomination. Also an adviser to the president on the Supreme Court.

So, Leonard, defend the process a little bit. You heard Jeffrey Toobin there saying, you will know what these judges would do on Roe v. Wade, but we will not in the public because they will be coached up to say nothing just like we see in every confirmation process.

Fair criticism?

LEONARD LEO, TRUMP SUPREME COURT ADVISER: People have been saying for 36 years, going all the way back to 1982, with the nomination of Sandra O'Connor that Roe v. Wade was going to be overturned. And 36 years later, we have one out of nine justices on the court who has said he would overturn Roe v. Wade, that's, of course, Chris, Justice Clarence Thomas.


CUOMO: So, Clarence Thomas who during his confirmation hearing just so people remember, basically said as Dershowitz was reminding people, I never really thought about Roe v. Wade before, and then got on the bench and he had very definite ideas. But continue.

LEO: Well, again, you know, Sandra Day O'Connor, people were worried she'd overturn Roe, she didn't. Anthony Kennedy, David Souder. We know as much about John Roberts and Neil Gorsuch for example as we know about Anthony Kennedy. So, I think there's a little bit of hysteria right now. And I hope that the confirmation process covers a wide range of issues. And we ought to have a national debate about constitutional interpretation across the board.

CUOMO: Well, you can debate it all you want. But it's the men and women in the robes who get to determine what they want to do. You can only remove them for bad behavior, which has happened just a handful of times and never at that level.

But the idea of who gets put on there is shaped if there's any hysteria because of what the president has said, Leonard. He said during the campaign, Roe v. Wade got to go, we put judges on there to get it done. Why would people expect him to do anything else now?

LEO: Well, Chris, here's what I know about what I know about the process. So, in all of my dealings with the president and in all of the meetings he's had with perspective nominees, as you mentioned three I think during the earlier process, the president's never asked a single nominee about Roe v. Wade or abortion, or frankly any other case, and he's never talked to me about it.

And that's the way the process ought to be.

CUOMO: It doesn't make any sense, Leonard. I don't understand. Let's just remind people of what he said. I'm not saying you're lying, I'm just saying it doesn't make sense to me, because of what he said during the debates.

Here, just to remind the audience.


DEBATE MODERATOR: Do you want to see the court overturn Roe v. Wade?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, if we put another two or perhaps three justices on, that's really what's going to be -- that will happen, and that will happen automatically in my opinion, because I am putting pro-life justices on the court. I will say this, if we'll go back to the states and the states will then make a determination.


CUOMO: Make a play for the evangelical and conservative vote by a man who didn't share that kind of thoughts before he got in the presidential race, maybe so. But that's what he said, Leonard.

LEO: Well, I can only tell you what the process is and that's what's important. You know, the fact of the matter is you mentioned the black robe. I mean, the reason why judges wear black robes because it symbolizes the idea that they leave their personal preferences at the courthouse door and they interpret the Constitution and the laws of the United States as they're written. And this president has said that there are three criteria that he

really wants to consider for nominating judges, all judges, including Supreme Court justices. One is extraordinary qualifications, two, as he puts it, judges who are, quote, not weak. And by that, he means people who have independent judgment and courage, and they're not going to be swayed by the political or social fashions of the day.


And thirdly, judges who are going to, in his words, interpret the Constitution the way the Framers meant to be.

Now, people can have disagreements, Chris, about, you know, various forms of interpretations that judges undertake with theories of jurisprudence, but those are the ideals that the president holds. And that's not an outcome-based method of appointing judges.

CUOMO: Understood.

Leonard Leo, thank you for making the case to the people on the show tonight. Appreciate it.

LEO: Thank you.

CUOMO: All right. So, look, this is a political process. So, Democrats don't like that Anthony Kennedy is off the court, but what can they really do to block a new Supreme Court nominee? That's on the docket in "Cuomo's Court", next.


CUOMO: We're not going to let it happen. That's what you're hearing from Senate Democrats vowing to put up a fight to stop President Trump's Supreme Court nominee. But how? They don't have the votes. What are their options?

Joining us now, CNN Supreme Court analyst Joan Biskupic, and CNN Supreme Court reporter Arian De Vogue.

Good to have you both.

Answer my question, Ariane?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Well, the thing is the Democrats are in a bind. And you've seen two different strategies.


You saw Chuck Schumer come out and say, we're not going to have hearings, and he was remember what happen with Merrick Garland and he was saying that we'll do everything we can to stop it.

But there's another set of Democrats, they don't think that that's going to work. They think that they've got a push-back in Garland and they really have to think about a strategy going forward to peel off votes. So, one thing they're going to do is, as you've talked about tonight, is look at Roe v. Wade. They're going to say, look, even if the court doesn't overturn precedent, it can chip it away to nothing.

And they're going to look at other cases. For instance, the Affordable Care Act, and the Trump administration earlier this spring said that they weren't going to defend key provisions. That's what the Democrats are fighting over now. And it's coming up pretty soon, because we're hearing, as you said that the new nominee could come as soon --

CUOMO: In July.

DE VOGUE: -- as July 9th.

CUOMO: So, the president is accelerating it, understandable.

Joan, you know, I hear from Democrats, you know, this takes a long time. Just Google how long it takes a Supreme Court nominee. It can take well over 100 days. So, we could may be make it through the election anyway.

Wishful thinking?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Yes, they may have an incentive to just get this one done. This is the first one, Chris, in our modern time that starts without the option of the filibuster. Remember, last April of 2017, when President Trump was pushing through Neil Gorsuch, Senator McConnell had to change the filibuster rules just to make sure it was a simple majority.

And so, that's what they face. They only need a majority this time around. And the other thing --

CUOMO: It is unusual. I mean, look, the nuclear option, Harry Reid did it for the lower court judges in 2013. McConnell's getting all this hype now for what he said in 2016, in his selective of Biden rule. But it was really what he then, when he said, if you do this, Harry Reid, you're going to regret it and you're going to regret it sooner than you think. Man, was that prophetic, you know?

BISKUPIC: It was so true. It was so true for lower court judges --

CUOMO: And it really came back.

BISKUPIC: That's right. And one thing I would say, you know, you really pressed Leonard Leo on the abortion question.

The president doesn't need to ask any of these candidates about Roe v. Wade because they wouldn't even be on the list if there wasn't a presumption that they would be against abortion rights. I'm not saying the new justice is going to vote definitely against abortion right, but nobody wouldn't have gotten on that list, that was so carefully vetted even back in May of 2016 during the campaign, and then it got added to in September of 2016, and we've now got this final list, that he's had in place since like, last November.

These people have all been scrutinized in so many different ways. CUOMO: Right. That's a nice little -- that was a nice little way of

getting around how Leonard got around that question. Not so ascribe to him any kind of animus.

BISKUPIC: No, that's just how it works.

CUOMO: But, you know, we heard what the president said. It was a naked play for the evangelical and conservative vote. This is not a position that's been in his soul for a very long time. Anybody who knows him here in New York knows that.

But, Ariane, he said in that debate, that's what we're going to do. I'm putting right to life judges who nobody ever describes judges that way, but he did. That's his intention.

DE VOGUE: Yes, but he did something that no other president has ever done that I can remember, is that he came up with that list. And Don McGahn, one of the oldest, longest serving members, way back in the campaign, he got together with the Federalist Society and they said, we're not going to be caught with another Souter, or maybe even a Chief Justice John Roberts. They know who these people are.

These people are already vetted. And that's why when you look at whether or not he's going to ask the question, that's what makes this one so different. And this president, and Don McGahn and the Federalist Society and McConnell and Grassley, they have come full force and they have handled this in a lot of ways, better than the Democrats have in the past. And they've caught the Democrats a little bit flat-footed.

CUOMO: Well, it does seem that way. But we all know how it goes. You guys know better than anybody. This is a beauty pageant at the end of the day. And you're not going to learn anything in this confirmation process, unless there's a huge gaffe. Everybody's got Robert Bork on their mind every time they get in that chair.

Ariane, Joan, thank you very much. I hope you enjoy the rest of your Friday night. Thanks for sharing a little bit of it with me.

All right. One thing you don't often hear about, the legal battles being fought far from the Supreme Court. I'm beginning to argue to you tonight at the end of the show that the judges are everything in assessing the Trump administration. And not just the big ticket Supreme Court justices. Getting conservatives on the district court, the circuit courts, all around the country, that can have an impact that last a generation, OK?

So, let's bring in Nan Aron and Ken Cuccinelli to take us through those legal showdowns, next.



CUOMO: Welcome back to our special on the changing court system in America and how state legislatures are going to seize on the Supreme Court shift to the right if President Trump gets his upcoming nominee confirmed. That's probably going to happen.

Let's bring in two more experts, Nan Aron, president of the Alliance for Justice. And Ken Cuccinelli, former attorney general of Virginia.

It's good to have you both.

Nan, we just had Xavier Becerra on, and he is part of the yang that we're seeing. The ying is that we anticipate, if there's another conservative justice put on the Supreme Court, you'll see states all over the country start passing laws that they're going to anticipate a friendly reception if they get to the Supreme Court, certainly in the area of reproductive rights.

Xavier Becerra is doing the same thing from the left's perspective, bringing cases against the Trump administration on state laws, trying to preserve what they do there.

How big a game is this?

NAN ARON, PRESIDENT, ALLIANCE FOR JUSTICE: Well, this has always been the case that states bring litigation. It's nothing new. It's gone on for decades.

I think the real question is, who the judges that are going to hear those cases? And it's not just Supreme Court justices, but as you said earlier, the worrisome thing, is that it's circuit court judges and district court judges.


And this president has had enormous ability to fill over 40 seats, lower court seats with individuals who manifest an exceptional hostility to workers, women, people of color, consumers, environmentalists.

So, there's a real problem with those seats being filled by individuals who are just so opposed to all the various constituencies. And I do believe we'll turn the clock back on all of our rights and liberties.

CUOMO: So, elections have consequences. Ken Cuccinelli, how do you feel about the judges that are being put on?

KEN CUCCINELLI, CNN LEGAL AND POLITICAL COMMENTATOR: Well, the quality of the judges is outstanding. It's interesting that Nan talks about --

CUOMO: Except for that guy Kennedy flagged in that hearing who had never tried a case ever before. Except for that guy, Ken. How about that guy?

CUCCINELLI: Yes. Yes, well, look you can always find weak spots because politics, especially at the lower level judges come into play as well. And I suspect that led to part of that snafu, and frankly, I'm glad that guy didn't get on. We want quality judges. But what a lot of us appreciated about the presidential race that was

so different was he put forward his list. He said, look, this is part of the package. This is what you get.

I've been asking candidates to do these sorts of things for years. I'm glad to finally see it actually happen because it provides accountability. And frankly, if he sticks to his list, he can go into the U.S. Senate and say, look, this was part of the U.S. presidential election. And the last time we had a midterm appointment to the Supreme Court was Justice Kagan in 2010, and she went through in 72 days.

So, there is very recent precedent for doing this at this time. And -- but what there isn't precedent for is a president who's already put his list before the American people, and that means everybody who would look closely at them, too, and vet themselves from left and right. I think that's --

CUOMO: But that's hard to do, Ken.

CUCCINELLI: -- a great accountability element.

CUOMO: That's hard to do, though.

CUCCINELLI: It is hard to do.

CUOMO: Nan, when you get the list of people, I mean, you know, even someone who's trained in law, it takes forever to get any sense of who somebody is by looking to their cases. Now, the Federalist Society will know. They'll have interviews with these people, that they understand what they're about very much so. But we're not going to learn from the confirmation process, are we?

ARON: No, but actually, we can learn a lot about who -- how they'll rule by reading about them, their experience, if they've been a state court judge, what they've done, a law teacher, you look at their law view articles.

But I think it's important to look at who some of these individuals are. Let's take a woman named Wendy Vitter. Wendy Vitter has written that contraception causes violent death.

Two of the candidates came before the Senate Judiciary Committee and wouldn't even say they would agree with the whole thing in Brown versus Board of Education.

CUOMO: All right.

ARON: And nominee after nominee after nominee possesses a record. In some respect one nominee supported conversion therapy for gay youth, one nominee called --


ARON: It goes on and on. CUOMO: All right. Well, let's leave it there because we're out of

time, but let's see who he puts up and then we'll do the vetting and we'll figure out. Ken, you'll be back, you'll first word on it, I'm going to have you on 100 times between now and then. I promise you that. You're always value-added.

CUCCINELLI: I'll remember that, Chris.

CUOMO: You're always value-added, both of you. Thank you very much for being with us.

CUCCINELLI: Thanks, Chris.

ARON: Thanks.

CUOMO: Lots to digest. This is a big topic, but we don't talk about it enough.

All right. When we come back from the break, we're going to make the case to you for why this matters. I know you don't hear about it a lot, but there's something wrong with that, too, next.



CUOMO: Closing argument.

It is the judges, the president's talk is tantalizing and drives news very often, but only one word that he has said defines him to this point, and that word is Gorsuch. That's why McConnell and Ryan in large part stay silent in the face of comments and policies they probably don't agree with. That's why evangelicals and conservatives are so forgiving of a president who doesn't exactly exemplify the character constraints they've applied to others.

And as we've learned tonight while the Supreme Court can have some final some in some let's say 80 cases a year, the federal appeals courts are usually the final stop nearly 1,000 times as often -- 1,000.

These decisions affect real people. One example, what just happened with the president's travel ban. The Supreme Court handed the president a big win, ruling that he does have broad powers under immigration law in the name of national security.

But the travel ban the Supreme Court upheld is not the ban that led to chaos at airports and protests in the streets in the first days of the presidency. Why? Because federal judges blocked the original, forced the administration to announce a new version and then another version. That was the version that ultimately was upheld by the Supreme Court this week.

What judges are put on the courts all over this country matters. They change culture. We will cover what happens and what impact it has on states, promise. All right. That's it for us tonight. Thank you for watching. We'll

get after it again with you on Monday, 9:00 Eastern. And guess what? We're doing two hours again.

Have a great weekend.